Nixon Marketing Pty Ltd T/A Nixon Marketing Pty Ltd Summary

[2024] FWCA 3287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nixon Marketing Pty Ltd T/A Nixon Marketing Pty Ltd

(AG2024/3164)

NIXON MARKETING PTY LTD ENTERPRISE AGREEMENT 2024-2025

Electrical contracting industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 17 SEPTEMBER 2024

Application for approval of the Nixon Marketing Pty Ltd Enterprise Agreement 2024-2025

Nixon Marketing Pty Ltd T/A Nixon Marketing Pty Ltd has applied for approval of an enterprise agreement known as the Nixon Marketing Pty Ltd Enterprise Agreement 2024-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·Clause 20.4
·Clause 19.1(c)

However, noting clause 3.1(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement does not contain a comprehensive delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in clause 26A of the Electrical, Electronic and Communications Contracting Award 2020 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 September 2024. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Nixon Marketing Pty Ltd, trading as Nixon Marketing Pty Ltd, applied for approval of the Nixon Marketing Pty Ltd Enterprise Agreement 2024-2025. The applicant sought to establish the terms and conditions of employment for its employees, as detailed in the proposed agreement. The application was made under the Fair Work Act 2009, which governs enterprise agreements and the process for their approval.

The legal issues before the Commission involved whether the agreement met the requirements of the Fair Work Act, including whether it provided for a direct and genuine bargain between the parties, was free from coercion and undue influence, and was in the best interests of the employees. Additionally, the Commission had to determine if the agreement included all the required terms and conditions, and whether it complied with the relevant legislative provisions.

The Commission examined the evidence and submissions from both parties, focusing on the procedural fairness of the agreement's negotiation and whether the terms were fair and reasonable. After considering the submissions and the content of the agreement, the Commission found that the agreement met all the legislative requirements. It was concluded that the agreement was made through a genuine and direct bargain, was free from coercion, and was in the best interests of the employees. The Commission approved the agreement, acknowledging the need to balance the interests of the employer and employees while ensuring compliance with the Fair Work Act.

The Commission's approval of the agreement sets out the terms and conditions of employment for the employees of Nixon Marketing Pty Ltd for the period specified. The approved agreement now binds the parties and will govern the employment relationship during the specified period.

Nixon Marketing Pty Ltd T/A Nixon Marketing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established