Nilsen (NSW) Pty Limited

[2020] FWCA 268

[2020] FWCA 268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nilsen (NSW) Pty Limited
(AG2019/4701)

NILSEN (NSW) PTY LTD & ETU SYDNEY CONSTRUCTION ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 17 JANUARY 2020

Application for approval of the Nilsen (NSW) Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Nilsen (NSW) Pty Ltd & ETU Sydney Construction 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 Nilsen (NSW) Pty Limited. 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] I note that clause 45(f) of the Agreement provides that if an employee fails the given the required notice, the employer shall have the right to withhold wages and/or entitlements due to the employee on termination with a maximum amount equal to the equivalent pay for the period of notice. Clause 45 (g) of the Agreement where an employee has been given notice of termination, and the employee abandons their employment during the notice period, the employee may not be entitled to payment for work done during the notice period subject to the Act. Clause 54 of the Agreement that the employer will provide the employee with protective clothing. Clause 54(e) provides that if an employees' employment is terminated for any reasons within the 30 days of receipt of protective clothing, the employer may deduct $300 from the employee’s final payment. In my view, these clauses may not be permitted deductions within the meaning of s.324 of the Act, and pursuant to s.326 of the Act are likely to have no effect to the extent that they are not permitted deductions. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] 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.

[6] 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.

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

•  Clause 18 – Sick leave

•  Clause 34 – Redundancy pay

However, noting clause 9(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 January 2020. The nominal expiry date of the Agreement is 31 October 2022.

COMMISSIONER

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Annexure A