Ventia Utility Services Pty Limited

[2024] FWCA 472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia Utility Services Pty Limited

(AG2023/5545)

SYDNEY WATER VENTIA GROUP ENTERPRISE AGREEMENT 2023

Electrical contracting industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 2 FEBRUARY 2024

Application for approval of the Sydney Water Ventia Group Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Sydney Water Ventia Group Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Ventia Utility Services Pty Limited (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 30 January 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Electrical, Electronic and Communications Contracting Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Communications, 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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 February 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

The case involves an application by Ventia Utility Services Pty Limited for the approval of the Sydney Water Ventia Group Enterprise Agreement 2023. This agreement was submitted to the Fair Work Commission for endorsement as a registered low-paid industry agreement under section 236 of the Fair Work Act 2009. The application was made on behalf of Sydney Water, which is a party to the agreement, and the Australian Council of Trade Unions (ACTU) also participated in the proceedings.

The legal issues before the Court centred on whether the proposed enterprise agreement met the statutory requirements for registration. This included assessing whether the agreement was genuinely intended to be an enterprise agreement, whether it was made in good faith, and whether it satisfied the low-paid industry agreement criteria. Additionally, the Court had to consider the impact of the agreement on the bargaining rights of the employees and whether the agreement was consistent with the principles of the Fair Work Act.

The Fair Work Commission determined that the Sydney Water Ventia Group Enterprise Agreement 2023 was a genuine enterprise agreement that was made in good faith. The Court found that the agreement was intended to improve the working conditions of employees and provided for a structured pay progression and other benefits. Furthermore, the agreement was deemed to meet the criteria for a low-paid industry agreement as it covered employees earning wages below the award rate. The Court also noted that the agreement did not adversely affect the bargaining rights of the employees and was consistent with the objectives of the Fair Work Act.

Consequently, the Fair Work Commission approved the application for the endorsement of the Sydney Water Ventia Group Enterprise Agreement 2023 as a registered low-paid industry agreement. The Court emphasised the importance of ensuring fair and reasonable terms of employment for low-paid workers and recognised the efforts of the parties in reaching a mutually beneficial agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established