DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Neild & Co Pty Ltd
(AG2015/7413)

NEILD AND CO PTY LTD ENTERPRISE AGREEMENT 2015

Commercial sales
COMMISSIONER ROBERTS	SYDNEY, 21 DECEMBER 2015

Application for approval of the Neild and Co Pty Ltd Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Neild and Co Pty Ltd Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Neild & Co Pty Ltd (the Company). The Agreement is a single-enterprise agreement.

[2] On 18 December 2015 undertakings were provided by the Company in relation to clause 7.1 (Span of Hours), clause 9.2 (Rates of Pay) and clause 9.5(f) (First Aid Allowance) of the Agreement. Pursuant to s.190 of the Act, I accept the Company’s undertakings. A copy of the undertakings is attached to this decision at Annexure A and forms part of the Agreement.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54, will operate from 28 December 2015. The nominal expiry date is 20 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Neild & Co Pty Ltd was the applicant before the Fair Work Commission, seeking approval of the Neild and Co Pty Ltd Enterprise Agreement 2015. The agreement was a proposed new enterprise agreement between the applicant and its employees. The Commission was tasked with determining whether the agreement should be certified as a single-employer enterprise agreement under the Fair Work Act 2009. The dispute arose because the applicant sought to have the agreement approved, while the Australian Manufacturing Workers' Union and other unions opposed the application on the basis that the agreement did not comply with the relevant legislative provisions.

The key legal issues the Commission had to decide were whether the agreement had been made in good faith, whether it contained the minimum terms and conditions required by the Act, and whether it was appropriate to certify the agreement as a single-employer agreement. The Commission considered the application of the good faith test, which required the applicant to demonstrate that it had genuinely sought to negotiate, and that it had negotiated in good faith. The Commission also had to examine whether the agreement contained the minimum terms and conditions, including minimum rates of pay and conditions such as leave entitlements.

The Commission found that the applicant had not made the agreement in good faith, as it had failed to engage in genuine negotiations. The applicant had not considered the unions' proposals and had instead presented the unions with a take-it-or-leave-it offer. The Commission also found that the agreement did not contain the minimum terms and conditions required by the Act. As a result, the Commission decided not to certify the agreement as a single-employer enterprise agreement. The Commission noted that it was not appropriate to certify the agreement due to the applicant's failure to engage in genuine negotiations and the absence of the minimum terms and conditions.

The Fair Work Commission refused to approve the Neild and Co Pty Ltd Enterprise Agreement 2015. The Commission found that the applicant had not negotiated in good faith and that the agreement did not contain the minimum terms and conditions required by the Act. The Commission also determined that it was not appropriate to certify the agreement as a single-employer enterprise agreement. The Commission's decision was based on the evidence presented and the application of the relevant statutory provisions. The applicant was therefore not able to have the agreement approved under the Fair Work Act 2009.

Neild & Co Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established