Gippsland And Southern Rural Water Corporation T/A Southern Rural Water

[2024] FWCA 652

[2024] FWCA 652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Gippsland And Southern Rural Water Corporation T/A Southern Rural Water

(AG2024/259)

SOUTHERN RURAL WATER (SRW) ENTERPRISE AGREEMENT 2023

Water, sewerage and drainage services
COMMISSIONER CONNOLLY	MELBOURNE, 19 FEBRUARY 2024

Application for approval of the Southern Rural Water (SRW) Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Southern Rural Water (SRW) Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Gippsland And Southern Rural Water Corporation T/A Southern Rural Water (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 February 2024.

1. The notification time for the Agreement under s.173(2) was 11 April 2023 and the Agreement was made on 2 February 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 15 February 2024, the Employer was invited to address aspects of the Agreement.

1. There are two National Employment Standards (NES) issues that require comment:

·   Compassionate leave: The entitlement to compassionate leave provided by clause 41 of the agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s. 105 (1) (b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s. 105 (1) (c) of the Act.

·   Family and domestic violence leave: Clause 43.3 of the agreement states that leave for family violence purposes are available to all employees with the exception of casual employees. Casual employees are entitled to access leave without pay for family violence purposes. This appears to raise inconsistency with s. 106BA of the Act which provides that the employer must pay for a casual employee at the employee’s full rate of pay worked out as if the employee had worked the hours.

1. Clause 4(a) of the Agreement acts as an effective NES precedence clause, in that it states that “Where the NES provides entitlements to Employees which are more beneficial than those provided for in this Agreement then the provisions of the NES shall apply to the extent of any inconsistency”. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The “CPSU, the Community and Public Sector Union” and “The Australian Workers’ Union” being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 20 December 2027.

COMMISSIONER

[1] 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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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