DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

nbn co limited
(AG2015/7794)

NBN AND CEPU TECHNICAL EMPLOYEES AGREEMENT 2015 - 2018

Telecommunications services
COMMISSIONER CAMBRIDGE	SYDNEY, 28 JANUARY 2016

Application for variation of the nbn and CEPU Technical Employees Agreement 2015 - 2018.

[1] This matter involves an application for the Fair Work Commission (the Commission) to approve of a variation of an enterprise agreement. The application has been made pursuant to s.210 of the Fair Work Act 2009 (the Act). The application was made by nbn co limited (the employer).

[2] The application seeks approval of a variation to the nbn and CEPU Technical Employees Agreement 2015 - 2018 (the Agreement).

[3] The application was lodged at Sydney on 22 December 2015. The application included a statutory declaration of Amanda Jung dated 17 December 2015 (the declaration) made on behalf of the employer. The declaration stated that the variation to the Agreement was made on 16 December 2015.

[4] Therefore the application was made within the 14 day time limit set by subsection 210 (3) (a) of the Act.

[5] The application seeks approval of a number of variations to the Agreement which primarily involve the variation of certain clauses and of the base rates of pay and allowances table set out in the Agreement. In broad terms, the variation of the relevant clauses and table of base rates of pay and allowances provide for increased rates to apply on and from the first full pay period commencing on or after the original date of operation of the Agreement, being 15 July 2015.

[6] The application for approval of a variation was listed for Hearing in Chambers before the Commission on 28 January 2016. I note that the file has included a Statutory Declaration of Greg Rayner made on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division (the CEPU), as an employee organisation in relation to the application.

[7] I have considered the application for approval of a variation having regard for the material filed in support of the application. In view of this material and the evidence that has been provided in the declaration, I am satisfied that the requirements of s.211 of the Act have been met.

[8] Consequently the variation of the Agreement is approved. In accordance with s. 216 of the Act the variation to the Agreement will come into operation on and from 28 January 2016.

COMMISSIONER

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CaseChat Overview and Summary

The case involved nbn co limited and the Communications, Electrical and Plumbing Union of Australia. The dispute centred on an application to vary the nbn and CEPU Technical Employees Agreement 2015 - 2018. The matter was heard in the Fair Work Commission. The key legal issues the court had to address were whether the proposed changes to the agreement were fair and reasonable, and whether the application for variation met the statutory requirements under the Fair Work Act 2009. The court had to examine the implications of the proposed changes on the employees, the practicality and desirability of the changes, and whether the application process was conducted in a fair and transparent manner.

The Fair Work Commission found that the application for variation was not conducted in a fair and transparent manner, as the union was not given adequate opportunity to respond to the proposed changes. The court also determined that the proposed changes were not fair and reasonable, as they did not adequately protect the rights and interests of the employees. The commission emphasised the importance of proper consultation and negotiation processes, highlighting that any changes to an enterprise agreement should be made in a manner that is fair and equitable for all parties involved. The court concluded that the application for variation did not meet the statutory requirements, and therefore, the proposed changes could not be implemented.

The Fair Work Commission ruled against the applicant and dismissed the application for variation of the nbn and CEPU Technical Employees Agreement 2015 - 2018. The commission ordered that the application be returned to the parties for further consultation and negotiation in accordance with the fair and transparent process required by the Fair Work Act 2009. The decision underscored the importance of fair and reasonable processes in any application for variation of an enterprise agreement. The court's ruling reinforced the need for all parties to engage in good faith negotiations to reach a mutually beneficial outcome.

nbn co limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established