Lower Murray Urban and Rural Water Corporation T/A Lower Murray Water

[2019] FWCA 388

[2019] FWCA 388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lower Murray Urban and Rural Water Corporation T/A Lower Murray Water
(AG2018/5322)

LOWER MURRAY URBAN AND RURAL WATER CORPORATION ENTERPRISE AGREEMENT 2018

Water, sewerage and drainage services
COMMISSIONER LEE	MELBOURNE, 24 JANUARY 2019

Application for approval of the Lower Murray Urban and Rural Water Corporation Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Lower Murray Urban and Rural Water Corporation Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lower Murray Urban and Rural Water Corporation T/A Lower Murray Urban. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. 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.

[3] 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.

[4] Clause 14 of the agreement appears to limit the class of employees who may enter into an individual flexibility arrangement. I observe that this may be unenforceable. 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 26 – Annual Leave –an employee’s entitlement to annual leave is expressed in hours instead of as 4 weeks as is provided in the NES;
● Clause 30 – Compassionate Leave –employees are only entitled to 5 days of compassionate leave per year;
● Clause 25 – Public Holidays – removes an employee’s entitlement to a paid day off when an employee is absent from employment without reasonable excuse or consent of employer on the day before or after a public holiday;
● Clause 27.4 – Parental Leave - provides for a maximum of 3 weeks concurrent parental leave. S 72(5) of the Act provides for 8 weeks concurrent parental leave with no right for the employer to refuse.

However, noting the undertakings referred to above, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Association of Professional Engineers, Scientists and Managers Australia, Australian Municipal, Administrative, Clerical and Services Union and the Community and Public Sector Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A