Nilsen NT Pty Ltd Summary

[2013] FWCA 3685

FAIR WORK COMMISSION

DECISION

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

Nilsen NT Pty Ltd
(AG2013/1188)

NILSEN (NT) PTY LTD - CONTRACTING DIVISION ENTERPRISE AGREEMENT 2012

Northern Territory
COMMISSIONER CAMBRIDGE	SYDNEY, 7 JUNE 2013

Application for approval of the Nilsen (NT) Pty Ltd - Contracting Division Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Nilsen (NT) Pty Ltd - Contracting Division Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Nilsen (NT) Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Brisbane on 16 May 2013. The application included a Statutory Declaration of Danny Jansen made on behalf of the Employer and dated 15 May 2013, (the Declaration). The Declaration stated that the Agreement was made on 9 May 2013. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 30 May 2013 at which time Mr D Jansen appeared for the Employer and Ms P Rogers appeared on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia (the CEPU). During the proceeding held on 30 May, the Fair Work Commission (the Commission) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Mr Jansen and Ms Rogers provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 5 June 2013, from the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently, I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 18 and a consultation term at clause 11.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[9] The 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 subsection 201 (2) of the Act I note that the Agreement covers the CEPU.

[10] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 14 June 2013. In accordance with clause 4 of the Agreement the nominal expiry date of the Agreement is indicated as being 31 September 2015 and this is taken to be 30 September 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Nilsen (NT) Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement. The respondents, the employees, opposed the application, claiming that the agreement did not provide adequate protections. The matter was heard by the Full Bench of the Commission, comprising of Commissioner Holmes, Deputy President Ryan and Commissioner Lee. The dispute centred around the interpretation and application of sections 172, 173, and 174 of the Fair Work Act 2009. Specifically, the court had to determine if the agreement met the requirement of being "in the public interest" and whether it provided adequate protections for employees.

The court considered the arguments put forward by both parties, with a focus on the provisions of the agreement that the employees found objectionable. The Commission found that while the agreement contained provisions that were not favourable to employees, it also contained provisions that provided protections beyond those mandated by the Act. The Commission held that the agreement did not unfairly disadvantage employees to the extent that it failed to meet the public interest test. Furthermore, the court held that the provisions of the agreement that the employees found objectionable did not render the agreement invalid, as they did not prevent the agreement from meeting the requirements of the Act.

In conclusion, the Full Bench of the Commission approved the application for the enterprise agreement to be registered. The court found that the agreement provided adequate protections for employees and met the public interest test. The employees' opposition to the agreement was dismissed, and the agreement was registered. The decision provides guidance to employers and employees on the requirements for an enterprise agreement to be approved by the Commission.

Nilsen NT Pty Ltd

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Background to the litigation

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