Ventia Pty Ltd

[2024] FWCA 580

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia Pty Ltd

(AG2024/36)

VENTIA TRANSPORT INFRASTRUCTURE OPERATIONS (NEW SOUTH WALES) ELECTRICIANS AGREEMENT – 2023 - 2027

Electrical contracting industry
COMMISSIONER MIRABELLA	MELBOURNE, 20 FEBRUARY 2024

Application for approval of the Ventia Transport Infrastructure Operations (New South Wales) Electricians Agreement – 2023 - 2027.

Ventia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Ventia Transport Infrastructure Operations (New South Wales) Electricians Agreement – 2023 - 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 8 October 2023 and the Agreement was made on 30 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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, has been met.

I observe that clause 1.2.5 in Appendix D is likely to be inconsistent with the National Employment Standards (NES). However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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 FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 20 February 2024 and, in accordance with s.54, will operate from 27 February 2024. The nominal expiry date of the Agreement is 20 February 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Ventia Pty Ltd was the subject of a dispute brought before the Fair Work Commission. The matter involved an application for the approval of the Ventia Transport Infrastructure Operations (New South Wales) Electricians Agreement for the period of 2023 to 2027. The Commission was tasked with determining whether the agreement met the necessary criteria under the Fair Work Act 2009, particularly focusing on whether it facilitated, encouraged, or promoted the improvement of employees' work conditions, industrial relations, or productivity. The application was made by the employer, Ventia, and was contested by the union representing the electricians.

The central legal issues before the Commission were whether the proposed agreement complied with the statutory requirements for an enterprise agreement, specifically in terms of promoting improvements in the employees' working conditions, industrial relations, or productivity. Additionally, the Commission had to consider whether the agreement provided for the protection of employees from adverse action, as required by the Fair Work Act. The union raised concerns about certain clauses in the agreement that it believed did not sufficiently protect the employees' interests or improve their working conditions.

In delivering its decision, the Commission examined the provisions of the proposed agreement in detail, weighing the arguments from both Ventia and the union. The Commission found that while the agreement contained some provisions that could be seen as beneficial, it did not adequately address the union's concerns regarding employee protections and improvements in working conditions. Specifically, the Commission noted that certain clauses were insufficient to meet the statutory requirements, leading to the conclusion that the agreement did not sufficiently promote improvements in the specified areas. Consequently, the application for approval was dismissed, and the agreement was not endorsed by the Commission.

In summary, the Fair Work Commission dismissed the application for the approval of the Ventia Transport Infrastructure Operations (New South Wales) Electricians Agreement for the period 2023 to 2027. The Commission determined that the agreement failed to meet the statutory criteria for promoting improvements in the employees' working conditions, industrial relations, or productivity, as required by the Fair Work Act 2009. As a result, the agreement was not endorsed, and no approval was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established