[1] Yarra Valley Water Corporation (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Yarra Valley Water Enterprise Agreement 2025 (the Agreement). The Australian Municipal, Administrative, Clerical & Services Union (ASU) and the Association of Professional Engineers, Scientists, Managers, Australia (APESMA) were bargaining representatives for the Agreement.

[2] The following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 2.2.19, relating to casual conversion, specifies that casual employees must have worked at least 12 months before they are able to convert to full or part time employment, however s.66AAB of the Act provides that an employee can request conversion after they have been employed for 6 months if the employer is not a small business.

• Clause 2.3.11, relating to abandonment of employment, states termination of employment by abandonment shall operate as from the date of the last attendance at work or the last day's absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the Employer, whichever is later. This may be inconsistent with s.117 of the Act.

[3] However, noting clause 1(6) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] I raised several better off overall test (BOOT) concerns regarding the Agreement.

[5] Firstly, that rates of pay for Officer Level 1.1.1 are equal to the Water Industry Award 2020 (the Award), rendering it unclear how these employees can be considered better off overall. The Employer provided an undertaking addressing this concern by amending the rates of pay for Officer Level 1.1.1 as follows:

[6] Secondly, clause 2.2.28 of the Agreement defines afternoon shift as any shift finishing after 7:00pm and at or before midnight, and night shift as any shift finishing after midnight and at or before 7:00am. In contrast, clause 2 of the Award defines afternoon shifts as any shift (other than a 12-hour shift) finishing after 6.00pm and at or before midnight and night shift as any shift finishing after midnight and at or before 8.00am. The effect of the Agreement definition may result in employees who finish after 6pm and before 7pm will not receive an afternoon shift penalty, and those who finish after 7am and before 8am will not receive a night shift penalty.

[7] The Employer provided an undertaking that the definitions of 'afternoon shift' and 'night shift' in clause 2.2.8 of the Agreement will be replaced with the below, which I am satisfied leaves employees better off under the Agreement:

Afternoon shift means any shift (other than a 12 hour shift) finishing after 6.00 pm and at or before midnight.

Night shift means any shift finishing after midnight and at or before 8.00 am.

[8] Thirdly, a number of allowances in the Agreement are lower than the Award equivalent.

[9] Clause 2.5.7 of the Agreement, relating to first aid allowance, prescribes a first-aid allowance of $15.46 per week, whereas clause 18.2(b) of the Award provides an allowance of $18.28 per week. The Employer provided an undertaking to increase the first aid allowance to reflect the equivalent allowance in the Award.

[10] Clause 2.5.7 of the Agreement prescribes a meal allowance of $21.01 per meal whereas clause 18.3(a) of the Award prescribes a meal allowance of $23.60 per meal. The Employer provided an undertaking to increase the meal allowance to reflect the equivalent allowance in the Award.

[11] Clause 2.5.7 of the Agreement provides for a daily sewage contact allowance of $5.64. The Award provides an hourly sewage contact allowance of $1.41, which may be more beneficial if employees are entitled to this allowance for over 4 hours in one day. The Employer provided submissions that no employee covered by the Agreement performs more than 4 hours work per day that would entitle them to this allowance. I am satisfied based on the Employer's submissions that it is not reasonably foreseeable that an employee will perform work for more than 4 hours a day that would entitle them to the sewage contact allowance.

[12] The Employer made submissions that it does not currently engage employees eligible for tool allowance and does not intend to do so under this Agreement. I accept that it is not reasonably foreseeable that the Employer will employ employees eligible this allowance.

[13] The Employer made submissions that employees engaged at the lower rates of OL 1.1. OL 1.2 and ENG 1.1 are not required to be on call, and only more experience employees are on call. I accept that it is not reasonably foreseeable that employees at OL 1.1, OL 1.2 and ENG 1.1 will be on call, and this addresses my concerns regarding the availability allowance.

[14] 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.

[15] 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.

[16] The ASU and the APESMA have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[17] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2026. The nominal expiry date of the Agreement is 31 January 2029.

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