Nilsen (NT) Pty Ltd

[2020] FWCA 2853

[2020] FWCA 2853

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Nilsen (NT) Pty Ltd
(AG2020/1192)

NILSEN (NT) PTY ENTERPRISE AGREEMENT 2020

Electrical contracting industry
DEPUTY PRESIDENT LAKE	BRISBANE, 2 JUNE 2020

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

[1] An application has been made for approval of an enterprise agreement known as the Nilsen (NT) Pty Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nilsen (NT) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] On 11 May 2020, I sent correspondence to the Applicant identifying concerns with the Agreement and requesting submissions by way of response. On 13 May 2020, the Applicant provided a response that addressed some of these concerns. On 18 May 2020, I sent further correspondence requesting further responses and requesting undertakings to address the concerns. The Applicant provided these on 22 May 2020.

[3] One of these concerns was in relation to the Notice of Employee Representational Rights (NERR) under s.173(1) of the Act. The Form F17 identified that the NERR was read out to employees during the meeting on 3 April 2020. I requested further information as to how the

[4] The Applicant submitted that there are 10 employees, 8 tradespeople and 2 apprentices in the workgroup to be covered by the Agreement. The Applicant submitted that it is a usual practice for the General Manager to read out documentation such as toolboxes, company and safety notices at workgroup meetings rather than handing out the actual document, and this has proven to be the most effective method of communication for the team as it ensures everyone hears the same information, gets an opportunity to ask any questions and hear their team members questions which may trigger their own. The Applicant said it also provides an opportunity to take in the information rather than passing around documentation that they may not read.

[5] The Applicant submitted that in the meeting on 28 February 2020, the General Manager, Mr Russell Cahill, read out the documentation and there were three or four copies of the NERR placed on the workbench around which everyone stood in the workshop. None of these documents were picked up during or after the meeting, nor did anyone ask for a copy. There were no questions asked by the employees about the NERR. Mr Cahill provided a statutory declaration which stated he read the NERR to all employees at the meeting on 28 February 2020.

[6] The Applicant submitted that after the reading of the NERR, a separate meeting was held on the 28 February 2020 by the employees and three bargaining representatives were nominated by employees who then went on to participate in the bargaining process representing their colleagues. The Applicant submitted that the employees therefore understood their right to appoint a bargaining representative.

[7] I am satisfied that despite the fact the NERR was not provided to employees, they were given notice of their right to representation and exercised that right. The employees were clearly aware of their right to be represented. I have also considered the fact that the usual practice for provision of information in the Applicant’s workplace is to read it to the employees. I also note copies were available to be taken by employees.

[8] I consider in this case, where there is a relatively small workforce and it is clear employees understood their right to be represented and exercised that right, it is appropriate to exercise discretion under s.188(2) as the Agreement would have been genuinely agreed to but for minor procedural or technical errors and the employees were not likely to have been disadvantaged by the errors.

[9] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[10] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement and as Annexure A to this Decision.

[11] The Agreement is approved and, in accordance with s.54 of the Act, and pursuant to clause 1.5 of the Agreement, will operate from 9 June 2020. The nominal expiry date of the Agreement is 28 February June 2023.

DEPUTY PRESIDENT

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Annexure A