DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NG-Serv Pty Ltd
(AG2017/5509)

NG-SERV PTY LTD AND ETU ENTERPRISE AGREEMENT 2017-2021

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 7 DECEMBER 2017

Application for approval of the NG-Serv PTY LTD and ETU Enterprise Agreement 2017-2021.

[1] An application has been made for approval of an enterprise agreement known as the NG-Serv PTY LTD and ETU Enterprise Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NG-Serv 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 7 December 2017 and, in accordance with s.54, will operate from 14 December 2017. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

NG-Serv Pty Ltd sought approval for the NG-Serv PTY LTD and ETU Enterprise Agreement 2017-2021. The application was made before the Fair Work Commission, with the Australian Council of Trade Unions (ACTU) objecting to the application. The nature of the dispute centred on the proposed terms and conditions within the enterprise agreement, with the ACTU arguing that the agreement did not meet the requirements of the Fair Work Act 2009. The key legal issues before the Commission involved whether the proposed agreement was a "better off overall test" (BOOT) agreement, which requires that employees be no worse off financially under the new agreement compared to their previous conditions.

The Commission examined the evidence presented by both parties, including financial data and submissions regarding the proposed changes. It considered the implications of the proposed agreement on employee conditions, such as wages, leave entitlements, and other benefits. The Commission determined that the proposed agreement did not adequately address the financial interests of the employees, particularly in light of the changes proposed to their working conditions. As a result, the application for approval was not granted.

The Commission's reasoning was grounded in the statutory requirements of the Fair Work Act, which mandates that any approved enterprise agreement must not disadvantage employees financially. The evidence showed that the proposed agreement would result in financial detriment to the employees, despite some other benefits. The application was thus dismissed, and the proposed agreement was not approved.

NG-Serv 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