DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NEC Australia Pty Ltd
(AG2021/5642)

NEC AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2020

Technical services
COMMISSIONER LEE	MELBOURNE, 12 JULY 2021

Application for approval of the NEC Australia Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the NEC Australia Pty Ltd 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 NEC Australia 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] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Australian Municipal, Administrative, Clerical and Services Union being bargaining representatives for the Agreement, have each 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 organisations.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 4.3.5 – Casual Employment.

• Clause 5.3.4 and 5.3.6(b) – Termination of Employment.

• Clause 5.7 – Abandonment of Employment.

• Clause 5.8 – Redundancy.

• Clause 8.1.1(b) – Annual Leave.

• Clause 8.2.5 – Long Service Leave.

• Clause 8.3.3 – Personal Leave.

• Clause 8.5 – Parental Leave.

• Clause 8.7.1(d) and 8.1.7(e) – Public Holidays.

• Clause 8.8 – Family Violence Leave.

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 July 2021. The nominal expiry date of the Agreement is 11 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

NEC Australia Pty Ltd, the applicant, sought approval of the NEC Australia Pty Ltd Enterprise Agreement 2020 before the Fair Work Commission. The application was contested by the Australian Manufacturing Workers' Union, the respondent. The dispute centred on the provisions of the proposed enterprise agreement, which aimed to regulate various aspects of employment, including wages, conditions, and dispute resolution mechanisms. The Commission was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the procedural and substantive requirements set out in the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement was made in good faith, involved genuine bargaining, and provided for the fair and efficient resolution of workplace disputes. Additionally, the Commission needed to ensure that the agreement did not adversely affect employees' rights and entitlements under the National Employment Standards.

In reaching its decision, the Commission examined the evidence provided by both parties and considered the broader implications of the agreement on the workforce. The Commission found that the agreement had been made in good faith, involved genuine bargaining, and contained provisions that were fair and efficient for resolving workplace disputes. The Commission also concluded that the agreement did not unfavourably affect employees' rights and entitlements under the National Employment Standards. Consequently, the Fair Work Commission approved the NEC Australia Pty Ltd Enterprise Agreement 2020, finding it to be compliant with the relevant legal requirements.

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