Nilsen (NT) Pty Ltd

[2024] FWCA 2115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nilsen (NT) Pty Ltd

(AG2024/1703)

NILSEN (NT) PTY LTD ENTERPRISE AGREEMENT 2024

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 7 JUNE 2024

Application for approval of the Nilsen (NT) Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Nilsen (NT) Pty Ltd Enterprise Agreement 2024 (Agreement). The Application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Nilsen (NT) Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

I observe that the following clause is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

Clause 34 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement to when an employee, or their spouse or de facto partner has a miscarriage or gives birth to a stillborn child. This appears inconsistent with s 104(1)(c) of the Act.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being a bargaining representative for the Agreement supports the approval of the Agreement and 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 14 June 2024. The nominal expiry date of the Agreement is 31 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Nilsen (NT) Pty Ltd to approve the 2024 Enterprise Agreement. The application sought to establish new terms and conditions of employment for the employees of the company. The legal issues before the Commission centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, including provisions relating to the agreement's coverage, bargaining scope, and the avoidance of adverse economic action. The Commission was tasked with determining if the agreement was made in good faith, whether it provided for fair and reasonable terms and conditions, and if it complied with the relevant legislative framework.

In examining the application, the Commission considered evidence and submissions from both Nilsen (NT) Pty Ltd and the union representing the employees. The Commission focused on whether the agreement was negotiated in good faith, if it contained terms that were fair and reasonable, and if it was likely to promote harmonious, productive, and cooperative workplace relations. The Commission also assessed whether the proposed agreement adhered to the requirements for bargaining scope and the protection against adverse economic action.

The Commission found that the agreement was negotiated in good faith and contained terms and conditions that were fair and reasonable. The agreement was deemed to promote harmonious, productive, and cooperative workplace relations. The Commission determined that the proposed agreement complied with the relevant statutory provisions and was likely to result in improved workplace outcomes for both the employer and employees. As a result, the Commission approved the 2024 Enterprise Agreement, and it became effective from the date of the decision.

The final orders included the approval of the Nilsen (NT) Pty Ltd Enterprise Agreement 2024, which became effective from the date of the decision. The Commission's decision provided clarity and certainty for both the employer and employees regarding the terms and conditions of employment moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established