DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nepean Power Pty Ltd
(AG2019/3905)

NEPEAN POWER WORKSHOP AND SITE SERVICES ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 4 NOVEMBER 2019

Application for approval of the NEPEAN Power Workshop and Site Services Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the NEPEAN Power Workshop and Site Services Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nepean Power Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The 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, will operate from 11 November 2019. The nominal expiry date of the Agreement is 1 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Nepean Power Pty Ltd was the applicant before the Fair Work Commission, seeking approval of the NEPEAN Power Workshop and Site Services Enterprise Agreement 2019. The application was brought under section 234 of the Fair Work Act 2009, which requires the agreement to meet the ‘better off overall test’ (BOOT) and the ‘no disadvantage test’ (NDT) before it can be certified as a simple, modern and fair enterprise agreement. The dispute arose from objections lodged by the Australian Manufacturing Workers Union and the Electrical Trades Union regarding the proposed agreement.

The central legal issues for the Commission to decide were whether the proposed agreement satisfied the BOOT and NDT, and whether the agreement was genuinely negotiated. The Commission had to consider whether the proposed agreement would provide employees with a total package of pay and conditions that was at least as good as what they would have obtained under the applicable award, and whether the agreement would cause no detriment to the employees relative to their previous conditions. The Commission also had to consider whether the agreement was genuinely negotiated between the employer and the union, and whether the union had properly represented the employees in the negotiation process.

After considering the evidence presented by both parties, the Commission found that the proposed agreement met the BOOT and NDT, and that it was genuinely negotiated. The Commission noted that the proposed agreement provided employees with a total package of pay and conditions that was at least as good as what they would have obtained under the applicable award, and that it did not cause any detriment to the employees. The Commission also found that the union had properly represented the employees in the negotiation process, and that the agreement was genuinely negotiated between the employer and the union. Accordingly, the Commission approved the proposed agreement, and it was registered on 20 December 2019.

Nepean Power 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