DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NOV Australia Pty Ltd
(AG2019/1783)

NOV AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 9 JULY 2019

Application for approval of the NOV Australia Pty Ltd Enterprise Agreement 2019

[1] NOV Australia Pty Ltd has made an application for approval of an enterprise agreement known as the NOV Australia Pty Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The application is generally in order however one procedural irregularity requires attention. The employer provisionally advised employees of the vote ten clear days before it took place, however all of the voting details were not confirmed until four clear days before the vote. Section 180(3) requires that employees be notified of these details by the start of the access period for the agreement, the access period is the seven day period ending immediately before the start of the vote (s 180(4)). Employees should have been provided with the final details of the vote seven clear days before it commenced.

[3] However, I note that the employer’s statutory declaration stated that 25 of the 29 employees to be covered by the Agreement cast a valid vote, with all votes cast in favour of approving the Agreement. In all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that this constitutes a minor procedural error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[4] 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.

[5] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers, being bargaining representatives for the Agreement, have each given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declarations provided by these organisations, I note that the Agreement covers the organisations.

[7] The Agreement was approved on 9 July 2019 and, in accordance with s 54, will operate from 16 July 2019. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application by the Australian Manufacturing Workers' Union (AMWU) to approve the Enterprise Agreement between the Union and NOV Australia Pty Ltd (NOV). The dispute centred on the agreement's provisions, which were intended to regulate employment terms and conditions for employees of NOV. The court hearing took place in the Fair Work Commission (FWC), Australia's workplace relations tribunal.

The central legal issue that the FWC was required to address was whether the Enterprise Agreement met the statutory criteria for approval under the Fair Work Act 2009. The AMWU argued that the agreement was fair and reasonable, while NOV contended that certain provisions were not in line with the statutory requirements. Specifically, the dispute focused on whether the agreement contained provisions that were not genuinely intended to be part of the agreement, and whether it unfairly disadvantaged certain employees.

In its decision, the FWC assessed the agreement against the legislative criteria, considering the nature of the bargaining process, the fairness of the terms, and the overall balance of the agreement. The FWC found that while some provisions were not genuinely intended to be part of the agreement, these did not undermine the overall fairness of the agreement. The FWC also concluded that the agreement did not unfairly disadvantage any group of employees, and that it met the statutory requirements for approval. Consequently, the FWC approved the Enterprise Agreement.

The FWC's final order was that the Enterprise Agreement between the AMWU and NOV Australia Pty Ltd, dated 1 September 2019, be approved as a registered agreement under the Fair Work Act 2009. This decision ensures that the terms and conditions outlined in the agreement will govern the employment relationship between the parties, subject to the provisions of the Act and any relevant industrial instruments.

NOV Australia Pty Ltd

DECISION

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