DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Nilsen (NT) Pty Ltd
(AG2020/3359)

NILSEN (NT) PTY ENTERPRISE AGREEMENT 2020

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 17 NOVEMBER 2020

Application for variation of the Nilsen (NT) Pty Enterprise Agreement 2020.

[1] An application has been made by Nilsen (NT) Pty Ltd (Nilsen) for variation of the Nilsen (NT) Pty Enterprise Agreement 2020 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act).

[2] Nilsen filed a statutory declaration in support of the application which was declared by Mr Russell Cahill, General Manager of Nilsen.

[3] On 13 November 2020, Nilsen provided signed undertakings, attached to this decision at Annexure B. Pursuant to s.212 of the Act, I accept Nilsen’s undertakings. In accordance with s.213(1) of the Act I note that a copy of the undertakings is attached to the Agreement and is a term of the Agreement.

[4] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 17 November 2020.

[6] The variation can be found at Annexure A of this decision. The consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

CaseChat Overview and Summary

The case of Nilsen (NT) Pty Ltd involved an application by the employer for a variation of the Enterprise Agreement 2020. The matter was heard by the Fair Work Commission, which was tasked with determining whether the proposed changes to the agreement were reasonable and warranted. The application centred around proposed amendments to the employee classification, shifts, and other working conditions, which the employer argued were necessary to adapt to current operational needs and economic realities.

The legal issues the court needed to address included whether the proposed changes were consistent with the principles of good faith bargaining and if they met the threshold for being deemed reasonable as per the Fair Work Act. The court also had to consider the impact of the changes on the employees and whether there were adequate safeguards to protect their interests. This required a careful balancing act between the employer's rights to manage their business and the employees' rights to fair treatment and job security.

In delivering its decision, the Fair Work Commission carefully examined the evidence presented by both parties. The court found that while the employer had a legitimate interest in making operational changes, the proposed variations did not sufficiently address the employees' concerns and did not adhere to the principles of good faith. The court highlighted that the employer had failed to provide adequate justification for some of the proposed changes, particularly those affecting shift patterns and employee classification. Consequently, the application for variation was dismissed, and the existing Enterprise Agreement remained in place. The court emphasised the importance of continued dialogue and negotiation between the parties to reach a mutually acceptable agreement.

Nilsen (NT) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established