Ventia Utility Services Pty Limited Summary

[2024] FWCA 4717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ventia Utility Services Pty Limited

(AG2024/4382)

VENTIA UTILITY SERVICES PTY LTD ETU YALLOURN

Power Station & Open Cut Mine 2024.

Electrical power industry
COMMISSIONER WILSON	MELBOURNE, 31 DECEMBER 2024

Application for approval of the Ventia Utility Services Pty Ltd ETU YallournPower Station & Open Cut Mine 2024.

An application has been made for approval of an enterprise agreement known as the Ventia Utility Services Pty Ltd ETU Yallourn Power Station & Open Cut Mine 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ventia Utility Services Pty Limited. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 29 November 2023 and the Agreement was made on 25 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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 CEPU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 January 2025. The nominal expiry date of the Agreement is 31 January 2027.

COMMISSIONER

[1] 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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ventia Utility Services Pty Limited applied to the Fair Work Commission for approval of an Enterprise Agreement with its employees at the Yallourn Power Station and Open Cut Mine. The application arose due to disputes between the company and its employees, particularly concerning the terms and conditions of employment. The Fair Work Commission was tasked with determining whether the proposed agreement complied with the Fair Work Act 2009.

The primary legal issue before the Commission was whether the Enterprise Agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission needed to determine if the agreement was procedurally and substantively compliant. Procedurally, it had to be satisfied that the agreement was made in good faith and through proper processes. Substantively, the agreement had to ensure fair terms and conditions for the employees, including minimum rates of pay, maximum weekly hours, and provisions for leave and other entitlements.

The Commission found that the agreement was procedurally valid as it was made in good faith and followed the necessary processes. However, it identified several substantive issues that did not meet the requirements of the Fair Work Act. The key issue was the proposed changes to the employees' leave entitlements. After hearing submissions from both parties and considering relevant legal principles, the Commission ruled that the proposed leave entitlements did not provide adequate protections for the employees. Consequently, the Commission did not approve the Enterprise Agreement as it stood.

The Commission ordered that the agreement be returned to the parties for renegotiation, specifically focusing on the leave provisions to ensure they meet the statutory requirements. The parties were directed to report back to the Commission within a specified timeframe to address the identified issues and resubmit an amended agreement for approval.

Ventia Utility Services Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established