EnergyAustralia Services Pty Ltd

[2024] FWCA 2814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

EnergyAustralia Services Pty Ltd

(AG2024/2556)

ENERGYAUSTRALIA CUSTOMER ENTERPRISE AGREEMENT 2024

Electrical power industry
COMMISSIONER MIRABELLA	MELBOURNE, 31 JULY 2024

Application for approval of the EnergyAustralia Customer Enterprise Agreement 2024.

EnergyAustralia Services Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the EnergyAustralia Customer Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement. The Agreement covers two employers, being EnergyAustralia Services Pty Ltd and EnergyAustralia Geelong Pty Ltd.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 29 February 2024 and the Agreement was made on 27 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Correspondence was sent to the parties by my chambers on 19 July 2024 raising the concern that the Agreement is silent in relation to shiftwork arrangements, and that rates of pay are not high enough to compensate Level 1 and 3 employees if they are required to work permanent night shift as defined by the Electrical Power Industry Award 2020. The Applicant responded that same day advising that the employees covered by the Agreement do not work permanent night shift, and nor have they ever worked permanent night shift. The Applicant further submitted they do not intend for employees to work permanent night shift under this Agreement. I am consequently satisfied that as per s.193A(6A) of the FW Act, permanent night shift is not a pattern of work that is reasonably foreseeable for the purposes of s.193A(6) of the FW Act and the better off overall test.

I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 31 July 2024 and, in accordance with s.54, will operate from 7 August 2024. The nominal expiry date of the Agreement is 31 March 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard an application by EnergyAustralia Services Pty Ltd for the approval of the EnergyAustralia Customer Enterprise Agreement 2024. The application was brought pursuant to the Fair Work Act 2009, seeking a determination that the proposed agreement would provide fair work outcomes for the employees covered by the agreement. The dispute centred around the terms of the agreement, specifically those relating to pay rates, working conditions, and employee benefits.

The central legal issues before the court involved whether the proposed agreement complied with the requirements of the Fair Work Act, including the provision of a safety net of minimum wages and conditions and the achievement of productive and sustainable enterprise outcomes. The court had to assess whether the agreement met the criteria for approval under the legislation, particularly focusing on whether it provided for fair and reasonable terms and conditions of employment.

In delivering its decision, the court examined the provisions of the proposed agreement in detail. It considered the evidence provided by both parties and the relevant legal standards. The court concluded that the agreement did indeed provide for fair and reasonable terms and conditions of employment, satisfying the requirements of the Fair Work Act. The agreement was found to offer a safety net of minimum wages and conditions and was conducive to achieving productive and sustainable enterprise outcomes.

Consequently, the court approved the EnergyAustralia Customer Enterprise Agreement 2024. The decision ensures that the agreement will serve as a binding framework for the employment conditions of the employees covered by the agreement, providing a fair and reasonable basis for their remuneration and working conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established