Veolia Water Operations Pty Ltd

[2024] FWCA 882

[2024] FWCA 882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Veolia Water Operations Pty Ltd

(AG2024/291)

VEOLIA WATER OPERATIONS PTY LTD - GOLD COAST DESALINATION PLANT TECHNICIANS ENTERPRISE AGREEMENT 2023

Water, sewage and drainage services industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 11 MARCH 2024

Application for approval of Veolia Water Operations Pty Ltd – Gold Coast Desalination Plant Technicians Enterprise Agreement 2023

Introduction

1. Veolia Water Operations Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Veolia Water Operations Pty Ltd – Gold Coast Desalination Plant Technicians Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. 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 Fair Work 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 the Agreement was 19 August 2022.

1. 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. The Agreement was made on 30 January 2024.

NES precedence term in Clause 9(c) of the Agreement

1. Clause 24(f) provides that an employee must notify their supervisor and control room Technician by telephone as soon as practicable on the first day of each absence due to personal/carer’s leave. Clause 26 does not provide an entitlement to compassionate leave in the event of miscarriage or stillbirth in accordance with s.104 of the Act. These clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 9(c) of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Overtime

1. Clause 21 of the Agreement provides less beneficial overtime provisions being 150% for the first 3 hours and 200% thereafter, in comparison to Clause 20 of the Award which provides that employees will receive 200% after the first 2 hours. This raises the issue of whether employees whose pay rates under the Agreement are close to the Award and who regularly perform overtime are better off overall under the Agreement. The Employer submitted that during the past 12 months employees covered by the Agreement have performed an average of 1.15 hours overtime per shift and that it expects this overtime pattern to continue into the future. The only case where employees' overtime hours have exceeded the 1.15 hours average was for emergency events. In the last 12 months there were approximately 4 such events where employees were required to perform additional overtime. In such cases the employees worked a full shift where they are paid overtime for 12 hours.

1. Based on the Employer’s submissions, I am satisfied for the purposes of s. 193A(6) of the Act that that it is not reasonably foreseeable that employees will work more than 2 hours of overtime on each occasion that overtime is performed. In these circumstances, I am satisfied that the Agreement passes the better off overall test.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

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

Section 183 Bargaining Representatives

1. The Australian Workers’ Union (AWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the AWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2024. The nominal expiry date of the Agreement is 18 September 2025.

DEPUTY PRESIDENT

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