DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

nbn co limited
(AG2015/2957)

NBN CLERICAL AND ADMINISTRATIVE EMPLOYEES AGREEMENT 2015 - 2018

Telecommunications services
COMMISSIONER CAMBRIDGE	SYDNEY, 8 JULY 2015

Application for approval of the nbn Clerical and Administrative Employees Agreement 2015 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the nbn Clerical and Administrative Employees Agreement 2015 - 2018(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by nbn co limited (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 5 June 2015. The application included a Statutory Declaration of Amanda Jung made on behalf of the Employer and dated 4 June 2015 (the Declaration). The Declaration stated that the Agreement was made on 26 May 2015. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 8 July 2015. I note that the file has included a Statutory Declaration of Linda White made on behalf of the Australian Municipal, Administrative, Clerical and Services Union (the ASU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 7 and a consultation term at clause 8.

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

[7] The ASU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the ASU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 15 July 2015. The nominal expiry date of the Agreement as specified in clause 5.1 of the Agreement, is 8 July 2018.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant, nbn co limited, applied for approval of the nbn Clerical and Administrative Employees Agreement 2015 - 2018. The respondent, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union), opposed the application on various grounds, including that the agreement did not meet the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the Act, specifically whether it met the requirements for approval as a registered agreement. This included whether the agreement had been made in good faith, whether it contained the minimum terms and conditions prescribed by the Act, and whether it had been made without the coercion or duress of either party.

The Commission found that the agreement did not meet the requirements of the Act as it did not contain the minimum terms and conditions prescribed by the Act. The agreement did not include provisions for paid parental leave and did not provide for the same rates of pay for work of equal or like value. Additionally, the Commission found that the agreement was not made in good faith as the applicant had not provided the Union with sufficient information to enable it to negotiate effectively. The Commission refused to approve the agreement.

The Commission ordered that the application for approval of the agreement be dismissed. The applicant was directed to negotiate with the Union to ensure that the agreement contained the minimum terms and conditions prescribed by the Act and that it was made in good faith. The Commission also directed the parties to report back to the Commission within 30 days to advise of any progress made in their negotiations.

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