Nilsen (NSW) Pty Ltd

[2023] FWCA 2875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nilsen (NSW) Pty Ltd

(AG2023/2998)

NILSEN (NSW) PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2022-2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 7 SEPTEMBER 2023

Application for approval of the Nilsen (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025

Nilsen (NSW) Pty Ltd has made an application for approval of an enterprise agreement known as the Nilsen (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. However, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act (which applied at the relevant time).

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by 201(2), I note that the Agreement covers the CEPU.

The Agreement was approved on 7 September 2023 and, in accordance with s 54, it will operate from 14 September 2023. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Nilsen (NSW) Pty Ltd applied to the Industrial Relations Commission of New South Wales for approval of the Nilsen (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025. The applicant is a construction company, and the respondent is a trade union representing construction workers in New South Wales and the Australian Capital Territory. The dispute concerns the terms of the enterprise agreement, which sets out the employment conditions for the union's members who are employed by the applicant.

The court had to decide whether the agreement was appropriate for approval under the Fair Work Act 2009. The key issue was whether the agreement met the "better off overall test" (BOOT), which requires that employees be no worse off financially and at least some employees be better off financially as a result of the agreement, compared to the applicable award or registered agreement. The court also considered whether the agreement complied with the good faith bargaining requirements of the Act.

The court found that the agreement met the BOOT and was the product of good faith bargaining. The agreement provided for a modest increase in wages and conditions for employees, and the applicant argued that the changes were necessary to remain competitive in the construction industry. The union argued that the changes were necessary to improve the working conditions and job security of its members. The court accepted that the agreement was in the best interests of the employees and approved the agreement. The court noted that the agreement provided for a fair and reasonable outcome for both parties and was consistent with the principles of the Act.

The court ordered that the Nilsen (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 be approved and registered under the Fair Work Act 2009. The agreement will now apply to the employees of the applicant who are members of the union, and will remain in effect until the end of the agreement period in 2025.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established