DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nilsen (SA) Pty Ltd T/A Nilsen (SA) Pty Ltd
(AG2020/3338)

NILSEN (SA) PTY LTD ENGINEERING SERVICES DIVISION ENTERPRISE AGREEMENT 2020

Electrical contracting industry
COMMISSIONER PLATT	ADELAIDE, 23 NOVEMBER 2020

Application for approval of the Nilsen (SA) Pty Ltd Engineering Services Division Enterprise Agreement 2020.

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

[2] The matter was allocated to my Chambers on 17 November 2020.

[3] On 19 November 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 19 November 2020. The undertaking deals with the following topics:

• The undertaking provides the definition of a shiftworker, that will be for the purposes of the National Employment Standards (NES).

• Despite clauses 14.1 (Safety Footwear), 14.2 (Protective Clothing), 14.3 (Weather-Proof Jackets), 15 (Tools) and 16.4 (Pay Back System), any deductions will be made in compliance with s.324 of the Act.

• An employee with an hourly rate margin of 33% or less than the equivalent rate in the Electrical, Electronic and Communications Contracting Award 2010 (the Award), who works less than 5 consecutive shifts, will be paid at least $10.00 more per week than the relevant minimum Award rates.

• Trainees that are entitled to allowances under the Award will be paid at least $10.00 more per week than the minimum Award rates (including the applicable allowances).

• The Agreement will import a Model Consultation Term as outlined in the undertaking.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, 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 this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of the Nilsen (SA) Pty Ltd Engineering Services Division Enterprise Agreement 2020. The applicant, Nilsen (SA) Pty Ltd, sought the approval of this agreement which had been negotiated with the relevant union representatives. The dispute centred around the terms and conditions of employment for the engineering services division employees, including matters such as wages, working hours, leave provisions, and other employment-related issues.

The primary legal issue the Commission needed to address was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This included verifying that the agreement contained the minimum terms and conditions as required by law, that it was free from prohibited content, and that the necessary consultation processes had been followed. Additionally, the Commission had to consider whether the agreement provided fair and reasonable terms for both the employees and the employer, ensuring that it did not unfairly disadvantage either party.

In deliberating on these issues, the Fair Work Commission examined the specific provisions of the agreement and assessed whether they complied with the statutory framework. The Commission considered the fairness and reasonableness of the terms, taking into account the nature of the industry, the bargaining power of the parties, and the overall economic context. After a thorough review, the Commission determined that the agreement was compliant with the relevant legislative requirements and provided fair terms for both parties. Consequently, the Commission approved the agreement, thereby resolving the dispute.

As a result of the Commission's approval, the Nilsen (SA) Pty Ltd Engineering Services Division Enterprise Agreement 2020 was formally recognised and implemented, providing a clear framework for the employment terms and conditions of the relevant employees. This decision ensures that the agreement will govern the industrial relations within the division, offering a stable and legally compliant basis for future interactions between the employer and the employees.

Nilsen (SA) Pty Ltd T/A 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