DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nivek Group Pty Ltd
(AG2018/5254)

NIVEK GROUP PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 25 MARCH 2019

Application for approval of the Nivek Group Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Nivek Group Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nivek Group Pty Ltd. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[3] The Agreement was approved on 25 March 2019 and, in accordance with s.54, will operate from 1 April 2019. The nominal expiry date of the Agreement is 25 March 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Nivek Group Pty Ltd sought approval of the Nivek Group Pty Ltd Enterprise Agreement 2018. The application for approval was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the agreement did not comply with various provisions of the Fair Work Act 2009 (Cth). The dispute centred around the interpretation and application of the Act's requirements for enterprise agreements, particularly in relation to minimum wages, penalty rates, and employee entitlements.

The Commission was required to determine whether the agreement met the statutory criteria for approval, including whether it provided for the proper operation of the enterprise and whether it adhered to the good faith bargaining principles. The CFMEU's primary contention was that the agreement failed to adequately protect employee entitlements, particularly in relation to the application of penalty rates and overtime provisions. The Commission needed to assess the fairness and reasonableness of the agreement's terms and conditions in light of these arguments.

In its decision, the Commission found that the Nivek Group Pty Ltd Enterprise Agreement 2018 did not fully comply with the requirements of the Fair Work Act 2009. The Commission identified several provisions that were inconsistent with the Act, including the calculation of penalty rates and the definition of overtime. The Commission determined that these issues undermined the agreement's compliance with the good faith bargaining principles and the proper operation of the enterprise. Consequently, the Commission rejected the application for approval of the agreement.

The Commission's decision highlights the importance of ensuring that enterprise agreements meet the statutory requirements for approval. The case serves as a reminder to employers and unions to carefully consider the implications of the Fair Work Act 2009 when negotiating and drafting enterprise agreements. The Commission's focus on the proper operation of the enterprise and adherence to good faith bargaining principles underscores the need for agreements that are fair and reasonable for both employers and employees.

Nivek Group 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