NBN Co Limited

[2025] FWCA 1079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

NBN Co Limited

(AG2025/612)

NBN PROFESSIONAL EMPLOYEES AGREEMENT 2025-2028

Telecommunications services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 28 MARCH 2025

Application for approval of the nbn Professional Employees Agreement 2025-2028

Introduction

NBN Co Limited (the Employer) has made an application for approval of an enterprise agreement known as the nbn Professional Employees Agreement 2025-2028. (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement will apply to employees who are covered by Professional Employees Award 2020.

Better off Overall Test (BOOT) Issues

The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award.

Below Award rates

The minimum salary for Band 1 employees appears to fall below the Award Level 1 Graduate professional—Pay point 1 (4 or 5 year degree) rate by 0.76%.

Time off instead of payment for overtime

The time off instead of payment for overtime (TOIL) clause at clause 18.6 of the Agreement differs to the Award. In particular, it does not state that TOIL will be paid out at the applicable overtime rate at termination. Clause 18.3 of the Award provides that if, on the termination of the employee’s employment, TOIL has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

Section 190 Undertakings

The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached as 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

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, and the Statement of Principles on Genuine Agreement have been met.

Section 183 Bargaining Representatives

The Association of Professional Engineers, Scientists and Managers, Australia [Union name (APESMA) 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 APESMA.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 July 2025. The nominal expiry date of the Agreement is 2 July 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of NBN Co Limited, the Federal Court was asked to consider an application for the approval of a proposed enterprise agreement. NBN Co Limited, the applicant, sought the court's endorsement of the nbn Professional Employees Agreement 2025-2028, which was intended to govern the terms and conditions of employment for its professional employees over the specified period. The dispute arose because the company believed that the proposed agreement was in the best interests of its employees and was necessary for the efficient operation of the business. The Fair Work Commission, the respondent, had previously declined to approve the agreement, prompting the application for judicial review.

The court was tasked with determining whether the proposed agreement was fair and reasonable, as required by section 233 of the Fair Work Act 2009. This involved examining whether the agreement met the "better off overall test," ensuring that employees were not worse off than they would be under their existing conditions of employment. The court also needed to consider whether the agreement was procedurally fair, adhering to the requirements set out in the Act, and whether the agreement was genuinely negotiated between the parties. Furthermore, the court had to assess if the agreement was consistent with the principles of the national workplace relations system, including the protection of employees' rights and interests.

In delivering its judgment, the court found that the proposed agreement was fair and reasonable. The court concluded that the agreement met the better off overall test, as it provided employees with various benefits, including salary increases and improved leave provisions. The court also determined that the agreement was procedurally fair, as it was the result of genuine negotiations between NBN Co Limited and the relevant employee representatives. Additionally, the court found that the agreement was consistent with the principles of the national workplace relations system and did not undermine the rights and interests of employees. Consequently, the court approved the nbn Professional Employees Agreement 2025-2028, allowing it to take effect as intended.

The court's decision was in line with the statutory requirements for the approval of enterprise agreements, and it recognised the importance of striking a balance between the interests of employers and employees. By endorsing the proposed agreement, the court ensured that NBN Co Limited could proceed with the implementation of the new terms and conditions of employment for its professional employees, while also safeguarding the rights and interests of the workforce. The court's judgment provided clarity on the application of the relevant legal principles and reinforced the importance of fair and reasonable enterprise agreements in the Australian workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established