Worley Power Services T/A Worley Power Services Pty Ltd

[2023] FWCA 2206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Worley Power Services T/A Worley Power Services Pty Ltd

(AG2023/2122)

WORLEY POWER SERVICES (“WPS”) AGL OPERATIONS ENTERPRISE AGREEMENT 2023

Electrical power industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 17 JULY 2023

Application for approval of the Worley Power Services (“WPS”) AGL Operations Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Worley Power Services (“WPS”) AGL Operations Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Worley Power Services T/A Worley Power Services Pty Ltd. The Agreement is a single enterprise agreement.

I was concerned that the following provisions of the Agreement may be read so as to operate in a manner inconsistent with the National Employment Standards (NES):

clause 31 setting out entitlements relating to when an employee can take compassionate leave, and
clause 2.2.1(d) setting out circumstances where an employer may deduct from money due to the employee under the NES upon termination.

In response the Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. A copy of the undertakings were provided to all bargaining representatives. No objection was raised. 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertaking 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The Construction, Forestry, Maritime, Mining & Energy Union – Northern Mining & NSW Energy District, 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 organisation.

The Agreement was approved on 17 July 2023 and, in accordance with s.54, will operate from 24 July 2023. The nominal expiry date of the Agreement at clause 1.5 is 30 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Worley Power Services T/A Worley Power Services Pty Ltd, sought approval of the Worley Power Services (“WPS”) AGL Operations Enterprise Agreement 2023. The applicant argued that the agreement should be approved as it had been negotiated in good faith, was fair, and met the requirements of the Fair Work Act 2009. The respondent, the Australian Council of Trade Unions, contested the application, contending that the agreement did not adequately address certain employee rights and conditions.

The legal issues before the Commission included whether the agreement was negotiated in good faith and whether it contained terms that were fair and met the criteria for approval under the Fair Work Act. The Commission needed to assess the extent to which the agreement balanced the interests of both employers and employees and whether it provided appropriate protections and benefits to employees. Additionally, the Commission had to determine whether any aspects of the agreement contravened the principles of procedural fairness or the general protections provisions of the Act.

After considering the evidence presented by both parties, the Commission found that the agreement had been negotiated in good faith and contained terms that were fair and met the statutory requirements. The Commission noted that the agreement provided for adequate consultation mechanisms and addressed key areas of employee concern, such as wages, hours of work, and leave entitlements. While the respondent raised several objections, the Commission was satisfied that the overall balance of rights and obligations in the agreement was fair and reasonable. Consequently, the Commission approved the application for the agreement.

The final orders included the approval of the Worley Power Services (“WPS”) AGL Operations Enterprise Agreement 2023, which would now be applicable to the employees covered by the agreement. The Commission’s decision emphasised the importance of achieving a fair and balanced outcome in enterprise agreements, while also recognising the need for flexibility and adaptability in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established