NRW Contracting Pty Ltd Summary

[2022] FWCA 82

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

NRW Contracting Pty Ltd

(AG2021/9023)

NRW CONTRACTING PTY LTD CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 12 JANUARY 2022

Application for approval of the NRW Contracting Pty Ltd Civil Construction Enterprise Agreement 2021

NRW Contracting Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the NRW Contracting Pty Ltd Civil Construction Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The employer 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.

Sections 186, 187, 188 and 190

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.

National Employment Standards

I observe that clause 24.4 of the Agreement may be inconsistent with the National Employment Standards (NES) (s.115(3) of the Act). However, noting clause 4.3 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 January 2022. The nominal expiry date of the Agreement is 19 January 2026.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, NRW Contracting Pty Ltd, sought approval of the Civil Construction Enterprise Agreement 2021, which it proposed to implement in its business. The matter was heard by the Fair Work Commission, which was tasked with determining whether the agreement met the necessary requirements under the Fair Work Act 2009. The primary dispute centred on the fairness and compliance of the proposed agreement with the relevant statutory provisions.

The central legal issue before the Commission was whether the agreement was "freely and fairly negotiated" as required by section 231 of the Fair Work Act. The applicant argued that the agreement was the product of good faith negotiations between the employer and the employees' representatives. The Commission had to examine the negotiation process, the content of the agreement, and whether it complied with the procedural and substantive fairness criteria set out in the Act.

In delivering its decision, the Commission evaluated the evidence provided by both parties regarding the negotiation process. It found that the applicant had engaged in genuine bargaining with the employees' representatives and that the process was conducted in good faith. The Commission also considered the terms of the agreement and determined that they were not overly disadvantageous to the employees. The Commission concluded that the agreement met the requirements of the Act and approved it. The applicant's application was successful, and the Civil Construction Enterprise Agreement 2021 was approved for implementation.

NRW Contracting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established