NCR Australia Pty Limited

[2022] FWCA 2667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NCR Australia Pty Limited

(AG2022/2248)

NCR Australia Field Service Agreement 2021

Business equipment industry
COMMISSIONER CIRKOVIC	MELBOURNE, 5 AUGUST 2022

Application for approval of the NCR Australia Field Service Agreement 2021

An application has been made for approval of an enterprise agreement known as the NCR Australia Field Service Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NCR Australia Pty Limited. The Agreement is a single enterprise agreement.

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.

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.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 2(c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Municipal, Administrative, Clerical and Services 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.

Noting that the deductions at clauses 45(w) and 64(c) of the Agreement may be unenforceable, the Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 August 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves an application by NCR Australia Pty Limited for the approval of the NCR Australia Field Service Agreement 2021. The dispute centres on whether the proposed agreement complies with relevant statutory and regulatory requirements and if its terms are fair and reasonable for the employees covered by the agreement. The matter was heard in the Fair Work Commission.

The legal issues before the Commission included whether the agreement provided for appropriate terms and conditions, including pay and penalties, and whether it complied with the relevant provisions of the Fair Work Act 2009. The Commission also needed to determine if the agreement met the requirements for being a simplified agreement and if it appropriately balanced the interests of both employees and the employer.

The Fair Work Commission assessed the proposed agreement against the statutory criteria and found that it provided for fair and reasonable terms and conditions. The Commission considered that the pay and penalty rates were consistent with those in other similar agreements and that the agreement met the requirements for being a simplified agreement. The Commission concluded that the agreement was in the best interests of the employees and approved the NCR Australia Field Service Agreement 2021.

No further orders were made by the Commission, as the approval of the agreement was the primary outcome sought and achieved in the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established