NCI Holdings Pty Ltd

[2020] FWCA 4893

[2020] FWCA 4893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NCI Holdings Pty Ltd
(AG2020/2319)

NCI HOLDINGS PTY LTD PRESTON ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 16 SEPTEMBER 2020

Application for approval of the NCI Holdings Pty Ltd Preston Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the NCI Holdings Pty Ltd Preston Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NCI Holdings Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. 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.

[3] 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.

[4] In its application for approval of the Agreement on 6 August 2020 the Employer advised that “the Company requests not to publish wage rates in the agreement as the company wishes to retain its competitive advantage. Publishing rates would reveal many of our price sensitive arrangements to our competitors.” 1 This request was provided in a pre-emptive undertaking. On 21 August 2020, my Chambers wrote to the Employer inviting further submissions on the request to redact wage rates and to distinguish this matter from the decision of The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji Foodservice).2

[5] On 26 August 2020, Ms Petrovski of the Employer replied stating that:

“With regards to the second point regarding BOOT- Rates of Pay, an undertaking was provided stating NCI requests not to publish the wage rates in the Agreement. It was in error that the Wage Rates were added as an Appendix in the Agreement when the Agreement was lodged for approval.

The intent of the Company was to provide a copy of the Wage Table to all employees and not publish these wages in the Agreement with an undertaking. I understand that the wage table should have been separated and sent to you separately and not attached to the Agreement.” 3

[6] My Chambers replied to the Employer and interested parties on 27 August 2020:

“In response to Ms Petrovski’s voicemail message and the below response to the rates of pay concern, the Commissioner advises his position in relation to redaction of wages remains the same.

The issue is what was given to employees in accordance with s.180(2)(a)(i) of the Fair Work Act 2009 which then becomes the Agreement “made” for the purposes of s.182(1) of the Act.

The material before the Commission leads Commissioner Wilson to the conclusion that what was voted on was the Agreement as submitted. In this regard, the Commissioner notes the Agreement provides for wages as set out in Appendix 2 (in Clause 12 on Page 12 of 40) and that Appendix 2 is on Page 40 of 40. Various documents were provided by the Applicant when the application was made, including a “Variation Spreadsheet”, which is referred to in the Form F17 as being part of the explanation given about the Agreement by the employer to employees (which was also provided). The Variation Spreadsheet makes clear there are to be wage increases, with the wage table set out in the Agreement.

Commissioner Wilson therefore proposes to approve the Agreement with the wage rates unredacted.

If the Applicant wishes to be heard before the Commissioner does so, then they are invited to make the appropriate application after which hearing Directions will be issued. If an application is to be made it is requested to be done as soon as possible but no later than 4.00PM Wednesday, 2 September 2020.”

[7] No response was received from the Employer or any interested parties. My Chambers therefore sent a follow up email on 3 September 2020 seeking to confirm if the Employer wished to be heard on the subject of the redaction of the wage rates. On 7 September 2020 Ms Petrovski indicated that, in such circumstances the Employer would not press for redaction of Appendix 2 containing the rates of pay and did not seek to be heard on the subject.

[8] The rates of pay within an enterprise agreement may be of relevance to a variety of people other than the employees to whom the agreement applies, and the unions covered by the agreement who might seek to enforce the entitlements of their members. The Full Bench in the Oji Foodservice decision found:

“the redaction of wage rates also makes it impossible for any interested party to form their own view of with the … agreement met the ‘better off overall test’ in ss. 186(2) and 193.” 4

[9] To not publish the rates of pay would be inconsistent with the Commission’s obligation pursuant to s.601 of the Act to publish decisions and the additional obligation in s.588(c) of the Act to perform its functions and exercise its powers in a manner that is “open and transparent”.

[10] In Oji Foodservice the Full Bench also noted the diversity of decisions at first instance where Commission members had:

a) approved agreements with orders “that certain matters contained within the agreement (such as pay rates) be kept confidential”,

b) declined such requests. 5

[11] Oji Foodservice was the “first occasion on which this issue [was] the subject of consideration by a Full Bench.” The Full Bench in Oji Foodservice concluded that:

“[48] In our view, s.601(4)(b) requires the Commission to publish in full an ‘enterprise agreement that has been approved by the FWC’. The construction we have adopted reflects the ordinary, everyday meaning of the word ‘publish’.

….

[72] The absence of a publicly available document setting out the wages to which employees employed under an enterprise agreement are entitled creates a barrier to the enforcement of the agreement. Further, as we have mentioned, the redaction of wage rates from a published enterprise agreement makes it impossible for any interested party to form their own view as to whether the agreement met the ‘better off overall test’. Such a consequence is inconsistent with the statutory direction in s.577(c), that the Commission must perform its functions and exercise its powers in a manner that is ‘open and transparent’.

[73] We reject the proposition that s.594 provides the requisite power for an order to redact wage rates from an enterprise agreement that has been approved by the Commission, for the purpose of publication under s.601(4)(b). Indeed, in our view it is not open to the Commission to make an order under s.594(1)(c) prohibiting or restricting publication of any material (including wage rates) that forms part of an approved enterprise agreement.

[74] It follows that the Deputy President lacked the requisite power to make the redaction decision. On that basis the appeal is upheld and the redaction decision is quashed.”

[12] I adopt the reasoning of the Full Bench in Oji Foodservice. I perceive no difference between a proposal to redact wage rates (rejected by the Full Bench in Oji Foodservice) and the non-publication of an appendix containing wage rates. To publish the NCI Holdings Pty Ltd Preston Enterprise Agreement 2020 without the wage rates would go against the decision of the Full Bench in Oji Foodservice that the Commission “publish in full an ‘enterprise agreement that has been approved by the FWC.” 6

[13] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union 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 the organisation.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 September 2020. The nominal expiry date of the Agreement is 31 March 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE508995 PR722719>

Annexure A

 1   Pre-Emptive Undertaking Letter to the Fair Work Commission, 6 August 2020.

 2   [2018] FWCFB 7501.

 3   Email response from Employer, 26 August 2020.

 4   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd[2018] FWCFB 7501, [44].

 5   Ibid [28]-[29].

 6 Ibid [48].