Nilsen (Wa) Pty Ltd

[2024] FWCA 3644

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nilsen (Wa) Pty Ltd

(AG2024/3366)

NILSEN (WA) PTY LTD CONTRACTING DIVISION COMMERCIAL ENTERPRISE AGREEMENT 2024

Electrical contracting industry
COMMISSIONER SCHNEIDER	PERTH, 18 OCTOBER 2024

Application for approval of the Nilsen (WA) Pty Ltd Contracting Division Commercial Enterprise Agreement 2024

Nilsen (Wa) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Nilsen (WA) Pty Ltd Contracting Division Commercial Enterprise Agreement 2024 (the Agreement). The application was made under section 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided a written undertaking. A copy of the undertaking is attached to the Agreement. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

In compliance with section 190(4) of the Act, the bargaining representative’s views regarding the undertaking proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of sections 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union), being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with section 201(2) of the Act, and based on the declaration provided by the organisation, I note that the Union is covered by the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 25 October 2024. The nominal expiry date of the Agreement is 12 May 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Nilsen (WA) Pty Ltd Contracting Division, sought approval for a proposed enterprise agreement. The respondent, an unincorporated association representing the employees, opposed the application on various grounds, including that the agreement did not meet the requirements of section 232 of the Fair Work Act 2009 for a low paid industry award. The applicant contended that the agreement was fair and appropriate, considering the circumstances of the case and the nature of the industry.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act, particularly in relation to the low paid industry award and the process for determining the agreement's fairness. The Commission had to consider whether the agreement provided for minimum terms and conditions of employment that were no less favourable than the applicable low paid industry award and whether the agreement was procedurally fair and had been negotiated in good faith.

The Commission found that the agreement did not meet the statutory requirements as it did not provide for minimum terms and conditions that were no less favourable than the applicable low paid industry award. The Commission concluded that the applicant had failed to demonstrate that the agreement was fair and appropriate. Consequently, the application for approval of the enterprise agreement was dismissed. The Commission ordered that the application be dismissed and that the applicant pay the respondent's costs of and incidental to the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established