Nilsen (Vic) Pty Ltd

[2022] FWCA 108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nilsen (Vic) Pty Ltd
(AG2021/8954)

NILSEN (VIC) PTY LTD AND ETU ENTERPRISE AGREEMENT 2021-2025

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 JANUARY 2022

Application for approval of the Nilsen (Vic) Pty Ltd and ETU Enterprise Agreement 2021-2025

[1] An application has been made for approval of an enterprise agreement known as the Nilsen (Vic) Pty Ltd and ETU Enterprise Agreement 2021-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nilsen (Vic) 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 as are relevant to this application for approval have been met.

[4] I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 4.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between Nilsen (Vic) Pty Ltd and the Electrical Trades Union Enterprise Agreement 2021-2025. The matter was heard in the Fair Work Commission. The primary issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act 2009 and was in the best interests of the employees. This included ensuring the agreement met the minimum entitlements, was free from prohibited content, and was not contrary to the public interest.

The Commission examined the agreement to determine if it provided employees with at least the minimum safety net entitlements, including minimum wages, penalty rates, leave entitlements, and other employment conditions. The Commission also assessed whether the agreement contained any provisions that were prohibited by the Fair Work Act, such as those that unfairly discriminated against certain employees or that undermined industrial relations protections. Furthermore, the Commission considered whether the agreement would have a detrimental impact on the public interest, such as by undermining workplace health and safety standards.

After thorough consideration, the Fair Work Commission found that the enterprise agreement was compliant with the Fair Work Act and in the best interests of the employees. The agreement provided for minimum entitlements and did not include any prohibited content. The Commission concluded that the agreement would not have an adverse effect on the public interest, as it was consistent with maintaining high standards of workplace health and safety and fair industrial relations practices.

The Commission approved the Nilsen (Vic) Pty Ltd and ETU Enterprise Agreement 2021-2025, with the approval to take effect from the date of the decision. This decision ensures that the agreement can be implemented, providing a clear framework for the employment conditions of the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established