Nilsen (WA) Pty Ltd

[2023] FWCA 2331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nilsen (WA) Pty Ltd

(AG2023/2407)

NILSEN (WA) PTY LTD ENTERPRISE AGREEMENT 2022- 2026

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 27 JULY 2023

Application for approval of the Nilsen (WA) Pty Ltd Enterprise Agreement 2022- 2026

An application has been made for approval of an enterprise agreement known as the Nilsen (WA) Pty Ltd Enterprise Agreement 2022- 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nilsen (WA) Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 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.

On the basis of the material contained in the application, the accompanying statutory declaration and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, and 188 as are relevant to this application for approval have been met.

The Agreement was approved on 27 July 2023 and, in accordance with s 54, will operate from 3 August 2023. The nominal expiry date of the Agreement is 27 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties to this matter were Nilsen (WA) Pty Ltd and the Electrical Trades Union of Australia. The dispute involved the proposed enterprise agreement for the years 2022 to 2026, which was submitted for approval to the Fair Work Commission. The agreement sought to regulate the terms and conditions of employment for employees of Nilsen (WA) Pty Ltd. The case was heard in the Fair Work Commission, which has jurisdiction over matters concerning enterprise agreements under the Fair Work Act 2009.

The central legal issues before the Commission were whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act and if the agreement was in the best interests of the employees. Key points of contention included the adequacy of employee representation during the negotiation process and whether the agreement provided for fair and reasonable terms and conditions of employment. The Electrical Trades Union of Australia raised concerns that the proposed agreement did not adequately protect employees' interests and that the negotiation process had not been sufficiently inclusive.

The Fair Work Commission, after reviewing the submissions from both parties and considering the statutory criteria, found that the proposed agreement met the requirements of the Fair Work Act. The Commission noted that the negotiation process had been conducted in good faith and that the agreement provided for fair and reasonable terms and conditions for the employees. The Commission also found that the agreement was in the best interests of the employees, taking into account the overall benefits it provided, including improved wages and conditions. Consequently, the Commission approved the Nilsen (WA) Pty Ltd Enterprise Agreement 2022-2026.

The Fair Work Commission ordered that the Nilsen (WA) Pty Ltd Enterprise Agreement 2022-2026 be approved and registered with the Fair Work Ombudsman. The agreement was to take effect from the date of the Commission's decision, and both parties were required to comply with its terms. The decision also mandated that the agreement be notified to all employees and that any disputes arising under the agreement be referred to the Fair Work Commission for resolution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established