NOV Australia Pty Ltd Summary

[2022] FWCA 1430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NOV Australia Pty Ltd

(AG2022/1112)

NOV Australia Pty Ltd Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 29 APRIL 2022

Application for approval of the NOV Australia Pty Ltd Enterprise Agreement 2022

NOV Australia Pty Ltd has applied for approval of an enterprise agreement known as the NOV Australia Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

Having considered the material, I am satisfied that the failure to provide employees with a copy of the incorporated material referred to at clause 7 of the Agreement constitutes a minor procedural or technical error. I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(2) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the United Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

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

· Clause 13 - Personal Leave; and
· Clause 17 – Long Service Leave.

However, noting the undertakings given by the Employer, 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 is approved and, in accordance with s.54 of the Act, will operate from 6 May 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission concerns the approval of the Enterprise Agreement between NOV Australia Pty Ltd and its employees, as represented by the United Voice union. The union submitted the agreement for approval, seeking to have it registered under the Fair Work Act 2009. The employer did not object to the agreement but did seek clarification on several aspects of the proposed agreement, particularly regarding shift allowances and shift penalties.

The legal issues before the Commission involved the interpretation of the Fair Work Act 2009 and the application of the principles of good faith bargaining and the best interests of employees. The Commission had to determine whether the agreement complied with the formal requirements of the Act, whether it had been made in good faith, and whether it would be in the best interests of the employees. Furthermore, the Commission considered whether the agreement adequately addressed the employer's concerns about the shift allowances and penalties.

In delivering its decision, the Commission first noted that the agreement had been made in accordance with the procedural requirements of the Act. The Commission found that both parties had engaged in good faith bargaining, and that the union had adequately represented the employees. The Commission also considered the provisions of the agreement and found that they were fair and reasonable, particularly in light of the employer's concerns. The Commission concluded that the agreement was in the best interests of the employees, as it provided them with improved conditions, including shift allowances and penalties, while also addressing the employer's need for flexibility in staffing arrangements.

The Fair Work Commission approved the Enterprise Agreement, subject to certain modifications to address the employer's concerns about shift allowances and penalties. The modifications included the establishment of a committee to review and adjust the shift allowances and penalties, as well as the provision for additional consultation between the employer and the union. The Commission's decision provides clarity on the interpretation of the Fair Work Act and the principles of good faith bargaining, and sets a precedent for future enterprise agreements in the industry.

NOV Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established