Anglo Coal (Capcoal Management) Pty Limited T/A Anglo Coal (Capcoal Management) Pty Limited

[2020] FWCA 4597

[2020] FWCA 4597

FAIR WORK COMMISSION

DECISION

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

Anglo Coal (Capcoal Management) Pty Limited T/A Anglo Coal (Capcoal Management) Pty Limited
(AG2020/2134)

CAPCOAL SURFACE OPERATIONS TRADES ENTERPRISE AGREEMENT 2020

Coal industry
COMMISSIONER HUNT	BRISBANE, 7 SEPTEMBER 2020

Application for approval of the Capcoal Surface Operations Trades Enterprise Agreement 2020 – Agreement approved together with confidentiality order made.

[1] Anglo Coal (Capcoal Management) Pty Limited T/A Anglo Coal (Capcoal Management) Pty Limited (the Employer)has applied for approval of an enterprise agreement known as the Capcoal Surface Operations Trades Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Employee signatory

[2] On application to the Commission the Employer did not provide a copy of the Agreement signed by an employee representative covered by the Agreement pursuant to reg.2.06A of the Fair Work Regulations 2009 (the Regulations). I received submissions from the Employer which stated that it had made numerous attempts to have an employee representative of one or both of the AMWU or CEPU sign the Agreement, but both the AMWU and the CEPU had advised that they did not intend to have of one of their representatives sign the Agreement.

[3] On 18 August 2020, the Employer made an application for confidentiality orders advising that it could provide a copy of the Agreement signed by an employee covered by the Agreement, subject to the Commission making an order that the details of the employee signatory to the Agreement be confidential.

[4] On 2 September 2020 I wrote to all the parties advising that:

•  A signed Agreement has been provided to the Commission (on a confidential basis) including the signatory of an employee covered by the Agreement;

•  A detailed list of employees covered by the Agreement has been provided to the Commission (on a confidential basis); and

•  A signed statement of the employee signatory has been provided to the Commission (on a confidential basis).

[5] I advised all parties that the Employer had made an application for a confidentiality order to ensure the employee signatory’s identity is not disclosed and that my provisional view was that the Agreement is capable of being approved and the confidentiality order made. I communicated that if any party had any views about this approach those views were to be provided to chambers by Thursday, 3 September 2020. The AMWU wrote to my chambers advising that it had no further views and is content for the proposed Agreement to be approved. I did not receive any correspondence from the CEPU or the CFMMEU.

[6] I am satisfied that the Agreement meets the requirements of s.185(2) of the Act and reg.2.06A of the Regulations being signed by the employer and at least one employee or employee representative and includes the full name, address and authority of each person. The full name, address and authority of the employee signatory to the Agreement is subject to Confidentiality Order [PR722278] issued 7 September 2020.

Unions covered by the Agreement

[7] In its Form F17 - Employer’s declaration in support of an application for approval of an enterprise agreement, the Employer declared that the CEPU and the AMWU were union bargaining representatives to the Agreement only. The CEPU and the AMWU both filed a Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement to the Commission giving notice under s.183 of the Act that they want the Agreement to cover them.

[8] On 13 August 2020, after the matter was allocated to my chambers, the CFMMEU also filed a Form F18 giving notice under s.183 of the Act that it wants the Agreement to cover it. On 21 August 2020, I invited the Employer, the CEPU, and the AMWU to provide their views as to whether the CFMMEU was a bargaining representative and can be covered by the Agreement. In consideration of the views received from the abovementioned parties, I considered it appropriate to direct the CFMMEU to file the following to my chambers only:

•  a signed witness statement from Mr Jeff Scales, District Vice President of the CFMMEU advising the name(s) of CFMMEU members at the time of the vote; and

•  a signed witness statement of at least one of the said members confirming their membership of the CFMMEU at the time of the vote and whether that person appointed an alternative bargaining representative.

[9] On 31 August 2020, the CFMMEU filed the above materials to my chambers. Having compared the materials received against a list of employees who were eligible to participate in the vote which had been provided by the Employer in-confidence to the Commission, I am satisfied that at the time of vote the CFMMEU had at least one member who will be covered by the Agreement. The details of that member are subject to Confidentiality Order [PR722577] issued 7 September 2020.

[10] In accordance with s.201(2) of the Act I note that the Agreement covers the CEPU, the AMWU and the CFMMEU.

Undertakings

[11] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the the Communications, Electronic, Energy, Information, Postal, Electrical, Plumbing and Allied Services Union of Australia (the CEPU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (the AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) regarding the undertakings.

[12] The AMWU filed submissions to my chambers advising that having considered the separate issues raised by the Commission and the Employer’s proposed undertakings it had no objection to the issues being resolved on the terms sought by the Employer by the proposed undertakings. The CFMMEU wrote to my chambers advising that it had no objections to the proposed undertakings. I did not receive any correspondence from the CEPU to my chambers regarding the undertakings.

[13] 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. It is also noted that the model flexibility term is taken to be a term of the Agreement.

Conclusion

[14] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2020. The nominal expiry date of the Agreement is four (4) years from the date of approval in accordance with clause 1.6 of the Agreement.

COMMISSIONER

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Annexure A: