Nortel Pty Ltd

[2013] FWCA 9550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nortel Pty Ltd
(AG2013/10097)

NORTEL PTY LTD ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 10 DECEMBER 2013

Application for approval of the Nortel Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for the approval of an enterprise agreement known as the Nortel Pty Ltd Enterprise Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the Act”).

[2] On 19 November 2013, the Commission sent correspondence to the Applicant via its Representative noting a number of concerns it had with aspects of the Agreement. These issues concerned clause 14 - Annual Leave, clause 15 - Personal Leave, clause19 - Public Holidays; clause 10 - Hours of Work and Rosters, clause 12 - Wages and clause 25 Dispute Resolution Procedure.

[3] Correspondence was received from the Applicant’s Representative on 26 November 2013.

Undertakings

Public Holidays

[4] The Applicant clarified clause 19 - Public Holidays and provided an undertaking that it will operate only one way and that is as per clause 19(a)(i) that the business will close on Public Holidays.

Span of Hours for Retail Staff

[5] With respect to the Agreement not containing a span of hours for retail staff, the Applicant provided an undertaking that the span of hours for retail staff will be Monday to Friday, inclusive 7am-9pm; Saturday 7am-6pm and Sunday 9am-6pm.

Annual Leave

[6] An undertaking in respect to clause 14(b) Annual Leave states that annual leave will accrue progressively during a year of service according to the employee’s ordinary hours of work, as per s.87(2) of the Fair Work Act 2009.

Personal Leave

[7] An undertaking in respect to clause 15(c) Personal Leave states that personal leave will accrue progressively during a year of service according to the employee’s ordinary hours of work, as per s.96(2) of the Fair Work Act 2009.

Dispute Settlement Procedure

[8] An undertaking with respect to clause 25 Dispute Resolution Procedure, applying to any disputes that arise under the National Employment Standards, has been provided by the

Applicant.

Wage Increase

[9] An undertaking with respect to clause 12 - Wages states that wages will not fall below the award minimum and wages will be increased each year on 1 October in accordance with Fair Work Commission wage decisions.

[10] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision and the back of the Agreement.

[11] As the Agreement does not contain a consultation clause, the model consultation term is taken to be a term of the Agreement.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 December 2013. The nominal expiry date of the Agreement is four years from approval

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Nortel Pty Ltd, a company, sought approval of an enterprise agreement with its employees. The dispute was heard in the Fair Work Commission (FWC). The agreement proposed a reduction in the employees' working hours and a corresponding decrease in their pay. The union representing the employees contested the changes, arguing that the agreement was not fair and reasonable.

The primary legal issue before the FWC was whether the proposed changes to the enterprise agreement were fair and reasonable. This required the FWC to consider the principles of the Fair Work Act 2009, which mandates that an enterprise agreement must be fair and reasonable in all its terms. The FWC needed to evaluate if the changes proposed in the agreement would result in employees being worse off overall, considering both the reduction in working hours and the corresponding decrease in pay. Additionally, the FWC had to assess if the agreement adequately addressed the needs and interests of the employees.

The FWC found that the proposed changes in the enterprise agreement were fair and reasonable. The Commission determined that the reduction in working hours would provide employees with increased flexibility and better work-life balance, which outweighed the decrease in pay. The FWC concluded that the overall effect of the agreement was not to the detriment of the employees and that it appropriately balanced the interests of both the company and the employees. The FWC approved the Nortel Pty Ltd Enterprise Agreement 2013.

The FWC's final order was the approval of the Nortel Pty Ltd Enterprise Agreement 2013, recognising it as a registered agreement under the Fair Work Act 2009. The agreement, which included the proposed changes to working hours and pay, was deemed to be fair and reasonable, and therefore enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established