NSW Electricity Networks Operations Pty Limited T/A TransGrid

[2018] FWCA 2881

[2018] FWCA 2881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NSW Electricity Networks Operations Pty Limited T/A TransGrid
(AG2017/6323)

TRANSGRID EMPLOYEES AGREEMENT 2016

Electrical power industry
COMMISSIONER MCKINNON	MELBOURNE, 23 MAY 2018

Application for approval of the TransGrid Employees Agreement 2016.

Introduction

[1] Application has been made for approval of a single enterprise agreement known as the TransGrid Employees Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by NSW Electricity Networks Operations Pty Limited T/A TransGrid.

[2] On 24 April 2018 I issued a decision setting out my preliminary findings in relation to the Agreement. 1

[3] Transgrid has given written undertakings in relation to the Agreement. A copy of these undertakings is attached in Annexure A. The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Community and Public Sector Union (CPSU) has each given their views on the proposed undertakings. No other views on the proposed undertakings have been expressed.

[4] Transgrid, APESMA and the CPSU also made further submissions about the definition of ‘shiftworker’, whether the Agreement contains unlawful terms and the effect of Schedules B and C to the Agreement.

[5] This decision determines the application.

Definition of ‘shiftworker’

[6] A concern was raised about whether the Agreement includes a definition of shiftworker for the purposes of the National Employment Standards (NES). Transgrid has made submissions on the issue and the CPSU agrees with those submissions. No other party has expressed an alternative view. I am satisfied that the Agreement contains a definition of shiftworker for the purposes of the NES.

Better Off Overall Test

[7] A concern was identified about how the better off overall test should be assessed for employees under Schedule B to the Agreement. The relevant modern award for comparison purposes is the Electrical Power Industry Award 2010 2(the Award). The concern was limited to Schedule B employees because in my earlier decision, I expressed the preliminary view that employees employed under Schedule C would be better off overall because their earnings would exceed the high income threshold. I confirm that view.

[8] Transgrid submits that the minimum remuneration payable under an Individual Employment Agreement (IEA) will always exceed the relevant salary point in the Agreement because it will also include an additional payment equivalent to 6 hours overtime per week. It has offered an undertaking to limit hours of work for employees under Schedule B of the Agreement to an average of 50 hours per week over a 4 week period.

[9] APESMA has expressed concern about the enforceability of the undertaking offered by Transgrid limiting hours of work to an average of 50 hours per week. It seeks assurance that employees will not be prejudiced in their employment if they choose to revert to Agreement conditions after entering into an IEA. The enforceability of Agreement terms and the protection of workplace rights are matters that are dealt with in the Act, including as civil remedy provisions. I am not persuaded that undertakings are necessary to replicate statutory protections or compliance provisions in the Act.

[10] According to APESMA, it covers the majority of employees who may enter into an IEA under Schedules B and C. It says that these employees will periodically be required to work in excess of 50 hours per week, including for issues such as emergency electricity transmission, preparation of bids for contestable works and the supply of information to the Australian Energy Regulator. I infer from that submission that employees employed on IEAs are likely to work up to 50 hours per week sometimes, but that it is not a standard pattern of work.

[11] Further modelling undertaken by the Commission factoring for the additional 6 hours overtime per week indicates that an employee working 50 hours under Schedule B will be at least $383.60 per week better off under the Agreement than the Award. 3

[12] Notwithstanding, the CPSU says the better off overall test is not met for employees on IEAs under Schedules B and C because they might be employed in a manner that is different than under the Agreement or the Award. On balance, I am satisfied that the more beneficial terms of employment for employees under Schedules B and C outweigh the potential detriment that might flow from fewer limits on the mode of employment for individual employees who are governed by an IEA and their contract of employment in each case.

[13] The CPSU submits that Schedules B and C exclude the NES in relation to public holidays, leaving employees worse off compared to the Award. Transgrid says the NES is expressly preserved in clause 3.1 the Agreement which guides the interpretation of the Agreement. I agree with Transgrid on this issue. The Agreement does not exclude the NES in relation to public holidays.

[14] The CPSU also submits that the absence of shift work provisions in an IEA might leave shiftworkers worse off overall, including because “financial compensation alone is not enough” when work/life balance is taken into account. I accept the premise of the submission that money will not always overcome perceived detriments that flow from changes to modern award conditions. However, in this case the level of remuneration payable to employees under Schedules B and C carries significant weight. I also note the CPSU’s acknowledgment that undertakings provided in relation to Schedule C would otherwise address its concerns in relation to the better off overall test for employees on IEAs under that Schedule.

[15] On balance, I am satisfied that with the undertakings provided, employees under Schedules B and C will be better off overall under the Agreement than the Award.

Unlawful Terms

[16] A concern was raised about whether Schedules B and C to the Agreementmight operate as ‘opt out’ terms for the purposes of section 194(ba) of the Act. Transgrid has made submissions on the issue and the CPSU agrees that Schedules B and C are not ‘opt out’ terms. Transgrid has offered an undertaking to ensure that a Schedule C IEA will not vary terms of the Agreement that are otherwise expressly preserved by that Schedule. On that basis, I am satisfied that the Agreement does not include unlawful terms, including ‘opt out’ terms.

Dispute resolution term

[17] A concern was raised during the hearing about whether IEAs under Schedule B and C meet the requirement in section 186(6) for dispute settlement terms to encompass both matters arising under the Agreement and the NES. Transgrid has given undertakings to address the concern and no party has objected to the undertakings.

Conclusion

[18] I am satisfied that the undertakings in Annexure A are necessary to address concerns in relation to the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[19] 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.

[20] APESMA, CPSU, the Construction, Forestry, Maritime, Mining and Energy Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union were each bargaining representatives for the Agreement and 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 the organisations.

[21] Pursuant to s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement.

[22] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2018. The nominal expiry date of the Agreement is 1 December 2020.

COMMISSIONER

Annexure A

 1   NSW Electricity Networks Operations Pty Ltd [2018] FWC 2324

 2   MA000088

 3   Comparison of Agreement salary point 30 to Award Level 11, factoring for Award meal, tool, power station and transmission allowances

Printed by authority of the Commonwealth Government Printer

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