NCR Australia Pty Limited T/A NCR Corporation

[2015] FWCA 4711

[2015] FWCA 4711

FAIR WORK COMMISSION

DECISION

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

NCR Australia Pty Limited T/A NCR Corporation
(AG2015/3585)

NCR AUSTRALIA FIELD SERVICE ENTERPRISE AGREEMENT 2015

Business equipment industry
COMMISSIONER BULL	SYDNEY, 14 JULY 2015

Application for approval of the NCR Australia Field Service Enterprise Agreement 2015.

[1] An application has been made by NCR Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the NCR Australia Field Service Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Australian Municipal, Administrative, Clerical and Services Union (ASU) was a bargaining representative to the Agreement making process. There were 15 employee bargaining representatives.

[3] On 8 July 2015, the Fair Work Commission (the Commission) wrote to the applicant via its legal representative, Ms Margaret Chan of Australian Business Layers and Advisors with respect to its concerns regarding the accompanying Notice of Employee Representational Rights (NERR). In particular, the concerns related to the NERR having the incorrect ABN identifier and the NERR making reference to the 2010 Agreement rather than the proposed 2015 Agreement.

[4] In doing so, the Commission referred to the NERR requirement under s.173 of the Act and noted the relevance of s.174 which prescribes the required content and form of the Notice. The Commission must be satisfied that employees have genuinely agreed to the proposed enterprise agreement.

[5] Correspondence was received from Ms Chan on 10 July 2015 on behalf of the applicant. It is submitted that the errors identified in the NERR were not intentional and were administrative and typographical in nature. More specifically, it is submitted that:

a) The NERR does specify the name of the employer, as required by s.174(1A) of the Act; and

b) The NERR does specify the name of the proposed enterprise agreement as required by s.174(1A) of the year, but that the year inserted with the Agreement name contains an error.

[6] It is further submitted that the despite the errors, the applicant’s NERR still contains all of the content required by s.174(1A) and does not contain any other additional content. The errors have not had the intention or effect of misleading employees in relation to the bargaining for and their approval of the Agreement.

[7] In conclusion, it is submitted that the NERR does comply with s.174(1A) of the Act, and the Agreement has genuinely been agreed to, noting the support of the ASU and the 89% support vote for the approval of the Agreement.

[8] I am satisfied of the submissions of the applicant, and that the requirements of s.174 have been complied with. Further, there is no evidence to suggest that the Agreement has not been genuinely agreed to.

[9] 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.

[10] 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 and supports the approval of the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[11] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 21 July 2015. The nominal expiry date of the Agreement is 2 years from the date of approval.

COMMISSIONER

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