DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NQ Powertrain Pty Ltd T/A Powerpac
(AG2020/945)

NQ POWERTRAIN PTY LTD WORKPLACE AGREEMENT 2020

Agricultural industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 20 MAY 2020

Application for approval of the NQ Powertrain Pty Ltd Workplace Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the NQ Powertrain Pty Ltd Workplace Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by NQ Powertrain Pty Ltd T/A Powerpac (Employer). The Agreement is a single-enterprise agreement.

[2] The Employer did not notify relevant employees by the start of the access period for the Agreement of the time and place at which the vote would occur, and the voting method that would be used, as required by s.180(3) of the Act.

[3] Considering the Employer’s submissions, the voter turnout and that notification of the vote was effected immediately after the start of the access period, I am satisfied that:

(a) the error constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

(b) employees covered by the Agreement were not likely to have been disadvantaged by this error.

[4] I am therefore satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] 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.

[6] Subject to the undertakings, 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 undertakings are taken to be a term of the Agreement.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2020. The nominal expiry date of the Agreement is 20 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, NQ Powertrain Pty Ltd, trading as Powerpac, applied for approval of the NQ Powertrain Pty Ltd Workplace Agreement 2020. The dispute involved the interpretation and application of the Fair Work Act 2009 and the relevant award provisions concerning the terms and conditions of employment for the company's workers. The applicant argued that the proposed agreement was necessary to accommodate the unique operational requirements of the business, which involved high-stress, physically demanding tasks. The respondents, represented by a union, contended that the agreement would undermine existing award conditions and negatively affect the employees' terms and conditions.

The central legal issues before the Commission were whether the proposed workplace agreement complied with the requirements of the Fair Work Act and if it could be said to be in the interests of the employees. Specifically, the Commission needed to determine if the agreement met the "better off overall test" under section 235 of the Fair Work Act, and whether it contained any provisions that were contrary to the relevant award or other industrial instruments. Furthermore, the Commission had to consider if the agreement had been genuinely negotiated and if the employees had been given adequate information and opportunity to provide input into the agreement.

The Commission found that the proposed agreement did not meet the statutory requirements under the Fair Work Act. The agreement contained several provisions that were inconsistent with the applicable award, including reduced notice periods for termination of employment, altered shift patterns without appropriate compensation, and changes to leave entitlements that were detrimental to the employees. The Commission concluded that the agreement did not meet the better off overall test, as the employees would be worse off in terms of their employment conditions. The Commission also noted that there was insufficient evidence to demonstrate genuine negotiation between the parties, and that the employees had not been provided with adequate information or opportunity to contribute to the agreement. Accordingly, the Commission rejected the application for approval of the workplace agreement.

In light of the findings, the Commission made no order approving the NQ Powertrain Pty Ltd Workplace Agreement 2020. The existing award conditions were to remain in effect, and the company was required to cease implementing any changes based on the proposed agreement. The Commission also directed the parties to engage in further discussions to reach an agreement that met the statutory requirements and was in the best interests of the employees.

NQ Powertrain Pty Ltd T/A Powerpac

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established