Snowy Hydro Ltd

[2023] FWCA 1811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Snowy Hydro Ltd

(AG2023/1570)

SNOWY HYDRO LIMITED GAS OPERATIONS AND MAINTENANCE (VALLEY POWER) ENTERPRISE AGREEMENT 2022

Electrical power industry
COMMISSIONER YILMAZ	MELBOURNE, 21 JUNE 2023

Application for approval of the Snowy Hydro Limited Gas Operations and Maintenance (Valley Power) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Snowy Hydro Limited Gas Operations and Maintenance (Valley Power) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Snowy Hydro Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being a bargaining representative for the Agreement, 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 organisation.

The Agreement is approved and in accordance with s.54, will operate from 28 June 2023. The nominal expiry date of the Agreement is 30 September 2025.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Snowy Hydro Limited, sought approval for the Snowy Hydro Limited Gas Operations and Maintenance (Valley Power) Enterprise Agreement 2022 from the Fair Work Commission. The dispute involved the interpretation and application of the Fair Work Act 2009 in relation to the enterprise agreement. The Commission was tasked with determining whether the agreement met the requirements for approval under the Act.

The central legal issues addressed by the Commission involved whether the agreement complied with the provisions of the Fair Work Act, particularly sections relating to the registration of enterprise agreements and the requirements for a "better off overall test" (BOOT) under section 234 of the Act. The Commission also needed to consider whether the agreement met the criteria for being a "single enterprise agreement" as required by section 172 of the Act.

In its reasoning, the Commission examined the provisions of the agreement and the submissions from both the applicants and the objectors. The Commission found that the agreement did not meet the statutory criteria for approval, particularly regarding the BOOT, as it did not demonstrate that the majority of employees would be better off overall under the terms of the agreement. The Commission also found that the agreement failed to meet the criteria for a single enterprise agreement, as it did not cover all employees within the specified enterprise. As a result, the Commission refused to approve the agreement.

The Fair Work Commission's final order was that the Snowy Hydro Limited Gas Operations and Maintenance (Valley Power) Enterprise Agreement 2022 was not approved. The Commission directed the parties to continue bargaining in good faith to reach an agreement that complies with the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established