Hunter Water Corporation

[2021] FWCA 6381

[2021] FWCA 6381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hunter Water Corporation
(AG2021/7657)

HUNTER WATER CORPORATION ENGINEERS AND SCIENTISTS (APESMA) AGREEMENT 2021

Water, sewerage and drainage services
DEPUTY PRESIDENT EASTON	SYDNEY, 22 OCTOBER 2021

Application for approval of the Hunter Water Corporation Engineers and Scientists (APESMA) Agreement 2021.

[1] Hunter Water Corporation (the Employer) has made an application for the approval of the Hunter Water Corporation Engineers and Scientists (APESMA) Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Agreement does not describe or define shiftworkers for the purposes of the National Employment Standards (see ss.187(4) and s.196 of the Act). However, the requirement to define or describe shiftworkers only arises if “a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards” (per s.196(1)(b)).

[4] In correspondence to the Commission the Employer stated:

“[The Employer’s] submission is that section 196 of the [the Act] does not apply in the present approval application, because the Agreement does not permit working patterns that would allow employees covered by the Agreement to be ‘shiftworkers’ within the meaning of the underpinning modern award. On that basis, [the Employer] submits that it is not necessary for the Agreement to contain a definition of ‘shiftworker’ for the purposes of the NES.”

[5] I am satisfied that no employee covered by the Agreement could fit the description in s.196(1)(b) because the Agreement does not allow shift work therefore the requirement of s.196(2) does not arise.

[6] Noting that the Agreement does not appear to allow shift work, the underpinning Modern Award defines certain workers as shiftworkers. Section 196(2) requires the Commission to be satisfied that the agreement defines or describes certain employees as shiftworkers for the purposes of the NES (see s.196 of the Act).

[7] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the APESMA.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 October 2021. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

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