DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nilsen (SA) Pty Ltd
(AG2019/4069)

NILSEN (SA) PTY LTD - SWITCHBOARD DIVISION ENTERPRISE AGREEMENT 2019

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 3 DECEMBER 2019

Application for approval of the Nilsen (SA) Pty Ltd - Switchboard Division Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Nilsen (SA) Pty Ltd - Switchboard Division Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nilsen (SA) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 40.8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and in accordance with s.54, will operate from 10 December 2019. The nominal expiry date of the Agreement is 1 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Nilsen (SA) Pty Ltd applied to the Fair Work Commission for the approval of the Nilsen (SA) Pty Ltd - Switchboard Division Enterprise Agreement 2019. The application was opposed by the Electrical Trades Union of Australia. The dispute centred on the terms of the proposed enterprise agreement and whether they complied with the requirements of the Fair Work Act 2009. Specifically, the union argued that the proposed agreement did not provide adequate protections for employees and that certain clauses were unfair.

The Fair Work Commission considered the arguments of both parties and examined the proposed agreement in detail. The Commission found that the agreement did not meet the requirements of the Fair Work Act as it failed to provide sufficient protections for employees in relation to redundancy and termination of employment. The Commission also found that certain clauses were unfair as they placed an undue burden on employees to prove their claims. The Commission refused to approve the proposed agreement and ordered that the application be dismissed.

The Electrical Trades Union of Australia was successful in its opposition to the application for approval of the enterprise agreement. The Commission found that the proposed agreement did not provide adequate protections for employees and that certain clauses were unfair. The Commission refused to approve the proposed agreement and ordered that the application be dismissed. The Fair Work Commission's decision highlights the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act and provide adequate protections for employees.

Nilsen (SA) 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