Application by WorkPac Mining Pty Ltd - [2016] FWC 251

[2016] FWC 251

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
WorkPac Mining Pty Ltd
(AG2015/5584)
DEPUTY PRESIDENT ASBURY	BRISBANE, 14 JANUARY 2016

Application for approval of the Traineeship and Mining Services Enterprise Agreement 2015

- application for approval refused.

1. BACKGROUND

[1] WorkPac Mining Pty Ltd (WorkPac) applies in accordance with Part 2-4 of the Fair

Work Act 2009 (the Act) for approval of the Traineeship and Mining Services Enterprise

Agreement 2015 (the Agreement). The parties to the Agreement are WorkPac and employees

described in the Agreement as “Field Team Members” or “FTMs”, for whom classifications

and rates of pay are prescribed by the Agreement. The Agreement applies to the exclusion of

all Awards and other Agreements. The nominal expiry date is expressed to be four years after

the date on which the Commission may approve the Agreement.

[2] After considering the application for approval, the terms of the Agreement and the

Form F17 Employer’s statutory declaration in support of an application for approval of an

enterprise agreement, I had concerns about:

 Whether a Notice of Employee Representational Rights (NERR) in the
prescribed form had been given to employees;

 Whether Workpac had taken reasonable steps to explain the terms of the
Agreement and the effect of those terms; and

 Whether the Agreement passed the better off overall test (BOOT.
[3] On 23 September 2015, Mr Andrew Thomas, National Industrial Officer of the

Construction, Forestry, Mining and Energy Union Mining & Energy Division (the CFMEU)

corresponded with the Commission advising that the CFMEU had a large number of members

employed by WorkPac in NSW and Queensland and is a party to another Agreement with

another company in the WorkPac Group. Mr Thomas stated that the CFMEU was concerned

that the Agreement left employees worse off than if they were employed under the relevant

Award and further, that the Agreement had not been genuinely agreed to. The CFMEU

foreshadowed that should WorkPac be unwilling to provide the CFMEU with the Form F16

Application for approval of an enterprise agreement and Form F17 Employer statutory

declaration in support of approval of enterprise agreement filed with the Agreement the

CFMEU would seek that the Commission provide it with those documents.
[2016] FWC 251

[4] On 30 September 2015, the CFMEU again wrote to the Commission to advise that

WorkPac had neither agreed nor refused to provide the Application for approval and the

Employer Statutory Declaration and sought that the Commission provide those documents.

The CFMEU said that it required the documents to properly make submissions to the

Commission in opposition to the application for approval of the Agreement. The CFMEU

submitted that the Commission had in the past provided such documents and the documents

would ultimately be publicly available in any event.

[5] On 2 October 2015, I declined the request to provide the Form F16 and Form 17 to the

CFMEU. I also directed the CFMEU to provide an outline of submissions setting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by WorkPac Mining Pty Ltd

Details

AGLC: Application by WorkPac Mining Pty Ltd [2016] FWC 251
Case: [2016] FWC 251
Decision Date: 14 January 2016

CaseChat Overview and Summary

In the matter of an application by WorkPac Mining Pty Ltd for approval of an Enterprise Agreement, the Deputy President of the Fair Work Commission, Asbury, dismissed the application. The decision identified that the employer had not given employees a Notice of Employee Representational Rights (NERR) in the prescribed form. The statutory declaration provided by the employer in support of the application was confusing and did not clarify the issue. The Court held that the employer had not complied with the requirements of the Fair Work Act 2009 to give employees a NERR in the required form. The Court also found that the employer had not taken reasonable steps to explain the terms of the Agreement and the effect of those terms to employees. The Court concluded that the Agreement did not pass the better off overall test. The Court found that the Agreement contained provisions that were less beneficial to employees than the relevant Modern Award and that there were no more beneficial provisions in the Agreement to offset the less beneficial provisions. The Court refused to approve the Agreement and dismissed the application.

Orders