Nilsen (NSW) Pty Ltd Summary

[2022] FWCA 2296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nilsen (NSW) Pty Ltd

(AG2022/1856)

NILSEN (NSW) PTY LTD & ETU ENGINEERING SERVICES EMPLOYEE ENTERPRISE AGREEMENT 2022

Electrical contracting industry
COMMISSIONER P RYAN	SYDNEY, 8 JULY 2022

Application for approval of the Nilsen (NSW) Pty Ltd & ETU Engineering Services Enterprise Agreement 2022

Nilsen (NSW) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Nilsen (NSW) Pty Ltd & ETU Engineering Services Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The Employer 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

Sections 186, 187, 188 and 190

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.

Section 183 Bargaining representatives

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.

In accordance with s.201(2) of the Act, I note that the Agreement covers the CEPU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 July 2022. The nominal expiry date of the Agreement is 8 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Nilsen (NSW) Pty Ltd, sought approval for the Nilsen (NSW) Pty Ltd & ETU Engineering Services Enterprise Agreement 2022. The applicant argued that the agreement was appropriate for its business operations and met the requirements for registration under the Fair Work Act 2009. The ETU Engineering Services, as the registered organisation representing the employees, contested the application on several grounds, primarily asserting that the agreement did not meet the requirements for approval under the Act.

The primary legal issues before the Commission were whether the agreement was a genuine enterprise agreement, whether it complied with the procedural requirements of the Act, and whether it was in the best interests of the employees. The Commission had to determine if the agreement was genuinely negotiated and if it included the necessary provisions as outlined in the Act. Additionally, the Commission had to assess if the procedural requirements, such as the provision of relevant documents to the employees and the opportunity for them to be represented, were properly followed.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement was genuinely negotiated between the parties and contained the necessary provisions. The Commission also determined that the procedural requirements were met, including the provision of relevant documents to the employees and the opportunity for them to be represented. Given these findings, the Commission concluded that the agreement was appropriate for registration and approved the application. The Commission considered that the agreement was in the best interests of the employees and was fair and reasonable.

The final orders of the Commission were that the Nilsen (NSW) Pty Ltd & ETU Engineering Services Enterprise Agreement 2022 be approved for registration under the Fair Work Act 2009. The agreement was to be registered from the date of the decision and would remain in effect until 30 June 2026, or until terminated earlier in accordance with its terms. The Commission also directed that the agreement be published in the Fair Work Commission’s Register of Approved Agreements.

Nilsen (NSW) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established