Nhulunbuy Corporation Limited

[2022] FWCA 969

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Nhulunbuy Corporation Limited

(AG2022/455)

Nhulunbuy corporation limited enterprise agreement 2022

Local government administration
Commissioner Matheson	SYDNEY, 18 MARCH 2022

Application for approval of the Nhulunbuy Corporation Limited Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Nhulunbuy Corporation Limited Enterprise Agreement 2022 (Agreement). The application was made by Nhulunbuy Corporation Limited (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

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

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The United Workers’ Union, 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 March 2022. The nominal expiry date of the Agreement is 18 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Nhulunbuy Corporation Limited applied to the Fair Work Commission for the approval of their 2022 Enterprise Agreement. The dispute involved the terms and conditions of employment for their employees, particularly those in relation to the minimum wages, penalty rates, and other employment standards. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009 and if it provided for the fair and reasonable terms of employment.

The primary legal issues before the Commission were whether the proposed agreement adequately provided for the minimum entitlements of employees, whether it met the procedural requirements for enterprise agreements, and whether it was in the best interests of the employees. The Commission considered the submissions from the Nhulunbuy Corporation Limited, as well as from other stakeholders, including the employees and their representatives. The Commission also had to ensure that the agreement did not adversely affect the employees' ability to exercise their rights under the Fair Work Act.

The Fair Work Commission determined that the proposed Enterprise Agreement was fair and reasonable, and that it met the legal requirements set out in the Fair Work Act. The Commission found that the agreement provided for minimum entitlements that were not less favourable than the relevant awards or the National Employment Standards. The Commission also noted that the agreement had been negotiated in good faith and that it provided for appropriate mechanisms for the resolution of disputes. Based on these findings, the Commission approved the Nhulunbuy Corporation Limited Enterprise Agreement 2022.

The Fair Work Commission's decision to approve the Enterprise Agreement is a significant outcome for both the Nhulunbuy Corporation Limited and its employees. The approval ensures that the agreement will provide for fair and reasonable terms of employment, and that it will comply with the requirements of the Fair Work Act. The decision also provides certainty and stability for the parties involved, and it sets a benchmark for future negotiations between the employer and employees. The Commission's decision demonstrates its commitment to ensuring that enterprise agreements are fair and reasonable, and that they provide for the best interests of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established