Nkt Pty Ltd Trading AS Nkt Australia

[2025] FWCA 2217

[2025] FWCA 2217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nkt Pty Ltd Trading AS Nkt Australia

(AG2025/1895)

NKT PTY LTD ENTERPRISE AGREEMENT 2025-2029

Electrical power industry
COMMISSIONER FOX	MELBOURNE, 7 JULY 2025

Application for approval of the NKT Pty Ltd Enterprise Agreement 2025-2029.

1. An application has been made for approval of an enterprise agreement known as the NKT Pty Ltd Enterprise Agreement 2025-2029 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Nkt Pty Ltd T/A Nkt Australia (the Employer). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights issued to employees on 28 April 2025 titled the Agreement as NKT Pty Ltd Enterprise Agreement 2025-2029 single-enterprise agreement whilst the Agreement is titled NKT Pty Ltd Enterprise Agreement 2025-2029. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] that this constitutes a minor technical or procedural error for the purposes of s 188(5)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) and Clause 107 of Schedule 1 of the Act, the model flexibility term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

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

• Annual Leave: Clause 7.1.6 of the Agreement states that annual leave shall be taken at a time which is approved by the Company as being convenient having regard to overall operational and manning requirements of the Company and that final approval shall lie with the Company. Section 88(2) of the Act states that an employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

• Personal/ Carer’s Leave – Evidence: Clauses 7.2.2 and 7.2.8 of the Agreement specifies the type of evidence which will be accepted to quality for personal/ carer’s leave. Pursuant to s.107 of the Act, evidence required to support taking personal/ carer’s leave should be that which would satisfy a reasonable person.

• Deduction of Monies: Pursuant to clause 5.1.8 of the Agreement, with respect to overpayment, in determining any termination payment, the Company may deduct from such final payment any balance of outstanding monies owing to the Company. This clause does not appear to limit the source of monies which may be deducted, and as such, the effect is that it appears to permit the employer to deduct employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination).

• Redundancy: Clause 9.1.2 of the Agreement states that where the employer facilitates acceptable alternative employment, the provisions of the redundancy clause will not apply. Section 120 of the Act states that an employer may apply to the Fair Work Commission for a determination on the redundancy amount to be paid to an employee in certain circumstances.

1. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 14 July 2025. The nominal expiry date of the Agreement is 7 July 2029.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

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