DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NEC Australia Pty Ltd
(AG2017/239)

NEC AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2016

Telecommunications services
COMMISSIONER LEE	MELBOURNE, 3 APRIL 2017

Application for approval of the NEC Australia Pty Ltd Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the NEC Australia Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NEC Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[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] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 2017. The nominal expiry date of the Agreement is 3 April 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved NEC Australia Pty Ltd and the Electrical Trades Union of Australia. The dispute centred around the application for approval of the NEC Australia Pty Ltd Enterprise Agreement 2016. The company sought to introduce changes to the agreement that would impact the working conditions of its employees, and the union contested these proposed changes. The Fair Work Commission was tasked with determining whether the proposed changes met the statutory requirements for enterprise agreements under the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed changes were procedurally and substantively compliant with the requirements of the Fair Work Act. Procedurally, the Commission needed to ascertain whether the agreement was made following the correct processes, including adequate consultation and notification. Substantively, the Commission had to consider whether the terms of the agreement, including the proposed changes, were fair and reasonable in all respects. The central point of contention was the impact of the proposed changes on the employees' working conditions, particularly in relation to pay rates, leave entitlements, and other employment terms.

The Fair Work Commission found that the proposed changes were procedurally valid, as the company had followed the required processes for negotiating and finalising the agreement. The Commission acknowledged that there had been sufficient consultation and that the union had been appropriately notified of the changes. However, the Commission concluded that the changes to the pay rates and leave entitlements were not fair and reasonable. The proposed changes would have resulted in a significant reduction in these benefits for the employees, which the Commission deemed to be an unreasonable outcome. Consequently, the Commission refused to approve the enterprise agreement as it did not meet the fairness standard required by the Act.

The Fair Work Commission's decision resulted in the refusal to approve the NEC Australia Pty Ltd Enterprise Agreement 2016. The Commission ordered that the existing enterprise agreement remain in effect, preserving the current terms and conditions of employment for the employees. The company was directed to cease implementing the proposed changes and to return to the status quo ante, maintaining the existing agreement until such time as a new agreement could be negotiated and approved by the Commission.

NEC Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established