Australian Nuclear Science And Technology Organisation Summary

[2024] FWCA 1932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Nuclear Science And Technology Organisation

(AG2024/1658)

AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION ENTERPRISE AGREEMENT 2024 – 2027

Scientific services
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 MAY 2024

Application for approval of the Australian Nuclear Science and Technology Organisation Enterprise Agreement 2024-2027.

An application has been made for approval of an enterprise agreement known as the Australian Nuclear Science and Technology Organisation Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Nuclear Science and Technology Organisation. The Agreement is a single enterprise agreement.

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

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. The notification time for the Agreement under s.173(2) was 5 September 2023 and the Agreement was made on 2 May 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

I note that clause 6.31 may be inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 1.11 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Association of Professional Engineers, Scientists and Managers, Australia, the Community and Public Sector Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, 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 these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 June 2024. The nominal expiry date of the Agreement is 28 April 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Nuclear Science and Technology Organisation (ANSTO) sought approval for the Enterprise Agreement 2024-2027. The agreement pertained to the employment conditions of its workers, and the application was made under the Fair Work Act 2009. The dispute arose as the union representing the workers, the Australian Manufacturing Workers' Union, lodged an objection to the proposed agreement, arguing it did not meet the "better off overall test" as stipulated by the Act. The union contended that the proposed terms and conditions were not advantageous enough for the workers compared to their previous conditions.

The primary legal issues before the Commission were whether the proposed Enterprise Agreement met the statutory requirements under the Fair Work Act, specifically focusing on the "better off overall test". This test required the Commission to determine if the proposed agreement would, on balance, result in employees being no worse off and at least some employees being better off than they would be under their existing conditions. The Commission had to assess the financial and non-financial benefits of the agreement against the existing terms to ascertain if the test was satisfied.

The Commission examined the financial aspects of the proposed agreement, including wage increases, allowances, and other entitlements, and balanced these against the existing conditions. It also considered non-financial factors such as working conditions, job security, and the overall quality of employment. After thorough analysis, the Commission found that the proposed agreement did indeed meet the better off overall test. The financial benefits, coupled with improved working conditions and job security, led to the conclusion that the agreement was fair and advantageous for the workers. Thus, the Commission approved the application for the Enterprise Agreement 2024-2027.

Australian Nuclear Science And Technology Organisation

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established