Ventia Australia Pty Ltd T/A Ventia

[2022] FWCA 1778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia Australia Pty Ltd T/A Ventia

(AG2022/1499)

Ventia & AWU Harbour Tunnel Maintenance Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 31 MAY 2022

Application for approval of the Ventia & AWU Harbour Tunnel Maintenance Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Ventia & AWU Harbour Tunnel Maintenance Enterprise Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a greenfields agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in 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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, 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.

Based on the statutory declaration provided by the organisation, I am satisfied that The Australian Workers’ Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am satisfied that The Australian Workers’ Union was a bargaining representative for the Agreement. I note that the Agreement covers The Australian Workers’ Union.

I am satisfied that the Agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.

I am satisfied that it is in the public interest to approve the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 7 June 2022. The nominal expiry date of the Agreement is 31 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved an application for the approval of the Ventia & AWU Harbour Tunnel Maintenance Enterprise Agreement 2022, with Ventia Australia Pty Ltd trading as Ventia being the employer and the Australian Workers' Union being the employee representative. The application was brought before the Fair Work Commission, which was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement contained all the mandatory terms required by section 233 of the Act, and whether it met the "better off overall test" under section 238 of the Act. This test requires that the agreement must not be less favourable to employees than the applicable award or safety net award, and that employees must not be worse off overall if the agreement were to be adopted.

In assessing the agreement, the Commission considered the provisions regarding wages, penalty rates, leave entitlements, and other employment conditions. The Commission found that the agreement contained all the mandatory terms and that it met the better off overall test. The Commission was satisfied that the agreement provided employees with benefits that were at least as good as, if not better than, those provided by the applicable award or safety net award. The Commission also noted that the agreement included provisions for dispute resolution and provided a framework for ongoing negotiations between the parties.

In light of the above, the Commission approved the Ventia & AWU Harbour Tunnel Maintenance Enterprise Agreement 2022. The agreement was deemed to be compliant with the requirements of the Fair Work Act and was therefore approved as a registered agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established