NRG Gladstone Operating Services Pty Ltd

[2020] FWCA 5975

[2020] FWCA 5975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

NRG Gladstone Operating Services Pty Ltd
(AG2020/2754)

NRG GLADSTONE OPERATING SERVICES PTY LTD (NRG GOS) ENTERPRISE AGREEMENT 2021

Electrical power industry
DEPUTY PRESIDENT LAKE	BRISBANE, 6 NOVEMBER 2020

Application for approval of the NRG Gladstone Operating Services Pty Ltd (NRG GOS) Enterprise Agreement 2021.

[1] An application has been made for the approval of an enterprise agreement known as the NRG Gladstone Operating Services Pty Ltd (NRG GOS) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by NRG Gladstone Operating Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Australian Workers’ Union (the AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), and the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), filed Form F18s in relation to the application, advising they were bargaining representatives for the Agreement and wished to be covered by the Agreement.

[3] The matter was allocated to my Chambers and correspondence was sent to the Applicant raising certain concerns regarding the Agreement. The Applicant provided undertakings and responses to the correspondence on 14 October 2020.

[4] The employee bargaining representatives were given opportunity to provide any views or objections in relation to the responses and undertakings. The ASU advised they did not oppose the undertakings and considered the Agreement could be determined on the basis of the material before the Commission. No other employee bargaining representatives expressed a view regarding the responses or undertakings.

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

● Annual leave – Clauses 2.6.5 and 3.3.9;
● Personal leave – Clauses 7.1.6 and 7.1.14;
● Carer’s leave – Clause 7.1.15;
● Redundancy – Clause 4.11.4;
● Public holidays – Clauses 2.6.6, 2.7.9 and 3.3.12.

[6] However, noting the NES precedence undertaking provided by the Applicant and incorporated as a term of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] 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. Pursuant to s. 190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement. The undertakings are attached to this Decision as Annexure A.

[8] I have taken into consideration the material filed in the Commission. Subject to the matters referred to above, I am satisfied that each requirements of ss. 186, 187, 188 and 190 as are relevant for this application for approval have been met.

[9] In accordance with s.201(2) and based on the statutory declarations provided by the organisations giving notice they wish to be covered by the Agreement, I note that the Agreement covers the ASU, AWU, AMWU, CEPU, and CFMMEU.

[10] I note the Agreement is to operate from either 1 January 2021 or from 7 days after approval by the Commission, whichever is the later date.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate form 1 January 2021. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE509478  PR724359>

Annexure A.