DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ahrens Olympic Dam Pty Ltd
(AG2020/3295)

AHRENS OLYMPIC DAM PTY LTD ENTERPRISE AGREEMENT 2020

Mining industry
COMMISSIONER PLATT	ADELAIDE, 23 DECEMBER 2020

Application for approval of the Ahrens Olympic Dam Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Ahrens Olympic Dam Pty Ltd Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ahrens Olympic Dam Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 13 November 2020.

[3] On 20 November 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant failed to provide seven clear days’ notice of the vote, however, I believe that this failure was a minor procedural error which did not have the effect of disenfranchising any employee who is covered by the proposed Agreement from participating in the bargaining process (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others). 1 I find that there has been a genuine agreement.

[5] The matter proceeded to Hearing on 18 December 2020 and the Applicant subsequently submitted an undertaking in the required form dated 18 December 2020. The undertaking deals with the following topics:

• If an employee covered by the Agreement engages in work that would result in the employee being defined as a shift worker under the Clerks - Private Sector Award 2010, Building and Construction General On-site Award 2010, the Plumbing and Fire Sprinklers Contracting Award 2010, the Mining Industry Award 2020 or the Electrical, Electronic and Communications Contracting Award 2010, the employee will be a shift worker for the purposes of the National Employment Standards (NES) and will be entitled to 5 weeks annual leave.

• The Applicant has inserted the model flexibility term.

• The Applicant has inserted a NES precedence clause. As a result, clause 18(b) will not operate in a manner inconsistent with s.87(2) of the Act, clause 19 will not operate in a manner inconsistent with s.96 of the Act and clause 19(j) will not operate in a manner inconsistent with ss.102 and 103 of the Act. Clause 16.3(b) will be amended to ensure that a permanent employee is paid their ordinary hours for all prescribed Public Holidays and in relation to clause 9.3, the Applicant will not withhold monies due to an employee, unless entitled to do so under the Act.

• The rates of pay in Schedule 1 have been increased.

• Until the nominal expiry date, rosters will be implemented that will result in employees being better off than the applicable modern Award.

• In respect of better off overall issues, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery (which despite its drafting appears to have effect for the life of the Agreement.) 2

• In relation to clause 8.2, part-time hours of work, and variations, will be agreed in writing.

• In relation to clause 8.3, casuals will be engaged for a minimum of 3 hours.

• In relation to clause 10.1, if an Industry Specific Redundancy Scheme applies under a applicable Award, such Scheme will apply to the employee.

• Apprentices will be reimbursed training and associated costs incurred as required by the applicable Award.

• Accident pay will be paid if an employee is entitled to it under the applicable Award.

• The rates of pay in the Agreement are in lieu of any National, State or General Wage increase. Should a higher rate be specified, the Applicant will vary the Agreement rate to ensure that employees are better off under the Agreement.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 29 October 2024.

COMMISSIONER

1 [2019] FWCFB 318

2 [2017] FWCFB 1664

Printed by authority of the Commonwealth Government Printer

Ahrens Olympic Dam Pty Ltd sought approval of an enterprise agreement under the Fair Work Act 2009. The application was made by the employer, Ahrens Olympic Dam Pty Ltd, in the Fair Work Commission. The dispute involved whether the proposed enterprise agreement met the necessary requirements under the Fair Work Act for it to be approved by the Commission.

The primary legal issue was whether the enterprise agreement, as proposed, complied with the statutory requirements outlined in the Fair Work Act. This included ensuring the agreement did not prejudice employees by setting conditions that were substantially worse off than their existing conditions, and whether it contained the necessary minimum terms and conditions mandated by the Act. The Commission also considered whether the agreement had been made in good faith and whether it had been appropriately certified by the Australian Building and Construction Commission.

The Fair Work Commission found that the enterprise agreement met the statutory requirements and did not set conditions that were substantially worse off for employees. The Commission was satisfied that the agreement contained the necessary minimum terms and conditions and had been made in good faith. Additionally, the certification of the agreement by the Australian Building and Construction Commission was deemed valid. Therefore, the Commission approved the enterprise agreement.

The Fair Work Commission approved the enterprise agreement, allowing it to come into effect. The employer was authorised to implement the terms and conditions set out in the agreement, subject to the conditions of the approval.

Ahrens Olympic Dam Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established