Queensland Bulk Water Supply Authority T/A Seqwater

[2020] FWCA 6983

[2020] FWCA 6983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Queensland Bulk Water Supply Authority T/A Seqwater
(AG2020/3564)

SEQWATER ENTERPRISE AGREEMENT 2019 - 2023

Water, sewerage and drainage services
DEPUTY PRESIDENT ASBURY	BRISBANE, 24 DECEMBER 2020

Application for approval of the Seqwater Enterprise Agreement 2019 - 2023.

[1] Queensland Bulk Water Supply Authority T/A Seqwater (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Seqwater Enterprise Agreement 2019 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

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

•  Clause 3.3.2(a) – notice of termination by employee;

•  Clause 7.2.1(f) – sick leave;

•  Clause 7.2.2(a) – carer’s leave;

•  Clause 7.2.2(d) – carer’s leave;

•  Clause 7.3 – bereavement leave;

•  Clause 7.9 – public holidays;

•  Clause 7.5 of Schedule 7 – redundancy payment; and

•  Clause 7.7(a) of Schedule 7 - Exceptions.

[5] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, 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 Form F17 Employer’s statutory declaration states that the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of the notification time for the Agreement. Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error, on the basis that the approval of the Agreement is supported by a number of employee organisations which were bargaining representatives for the Agreement. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[7] The Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU), the Australian Workers’ Union (the AWU), the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), and The Association of Professional Engineers, Scientists and Managers, Australia have each 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, and based on the declarations provided, I note that the Agreement covers these organisations.

[8] Clause 1.7.1 of the Agreement states the Agreement will operate from the date the Agreement is approved. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

[9] Subject to the Undertakings, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[10] The Agreement is approved in accordance with s.54 of the Act and will operate from 31 December 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A.