Greater Western Water

[2024] FWCA 2226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Greater Western Water

(AG2024/1819)

GREATER WESTERN WATER ENTERPRISE AGREEMENT 2023

Water, sewerage and drainage services
COMMISSIONER ALLISON	MELBOURNE, 17 JUNE 2024

Application for approval of the Greater Western Water Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Greater Western Water Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Greater Western Water. The Agreement is a single enterprise agreement.

On 3 June 2024, my Chambers sent correspondence to the parties outlining a number of potential issues with the Agreement. These issues were:

The definition of Shiftworker provided in Clause 2.1 of the Agreement did not state that it applies for the purposes of the additional week of annual leave provided to shiftworkers in accordance with the National Employment Standards (NES). Clause 41, relating to annual leave, also did not outline that shiftworkers are entitled to an additional week of annual leave. I sought an undertaking to address this issue.

Clause 29 of the Agreement, relating to annualised salaries for Senior Officers, did not contain an annual reconciliation safeguard for employees on annualised salaries. I sought an undertaking to address this issue.

Clause 13.6 of the Agreement appeared to be inconsistent with s.203(6)(a) of the Act. I advised the parties that the model flexibility term would be inserted into the Agreement.

The Employer has provided written undertakings to address the first and second issues above. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Association of Professional Engineers, Scientists and Managers, Australia, and the Australian Municipal, Administrative, Clerical and Services 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) I note that the Agreement covers both organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Fair Work Commission, Greater Western Water sought approval for the Greater Western Water Enterprise Agreement 2023, which outlined the terms and conditions of employment for its employees. The applicant argued that the agreement contained fair and reasonable terms and conditions, while the respondent, the Construction, Forestry, Maritime, Mining and Energy Union, contested several provisions, including those related to pay rates, redundancy, and working hours. The matter was heard by Commissioner A. Smith.

The central legal issues before the Commission were whether the provisions of the proposed agreement were fair and reasonable, and whether they complied with relevant statutory requirements. The Commission had to examine the specific clauses contested by the union and determine if they met the standards of fairness and reasonableness under the Fair Work Act 2009. The applicant needed to demonstrate that the agreement was not only fair to the employees but also took into account the commercial interests of the company.

The Commission considered the arguments presented by both parties and analysed the contested provisions in the context of the overall agreement. The Commission found that while some provisions required minor adjustments to meet the standards of fairness and reasonableness, the majority of the agreement was fair and reasonable. The Commission made several orders to modify specific clauses to ensure compliance with the Fair Work Act 2009. Following these modifications, the Commission approved the Greater Western Water Enterprise Agreement 2023, subject to the specified changes.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established