Application by WorkPac Mining Pty Ltd

The Deputy President of the Fair Work Commission, Asbury, considered an application for the approval of an enterprise agreement between WorkPac Mining Pty Ltd (WorkPac) and its employees, who were referred to as "Field Team Members" or "FTMs." The application for approval was refused. The Deputy President raised concerns about whether WorkPac had given a Notice of Employee Representational Rights (NERR) to employees in the prescribed form, whether WorkPac had taken reasonable steps to explain the terms of the Agreement and the effect of those terms to employees, and whether the Agreement passed the better off overall test (BOOT). The Deputy President concluded that WorkPac had not given a valid NERR to employees, as required by the Act. The information provided in the Employer's Statutory Declaration in relation to the NERR was confusing, and the evidence seeking to clarify the information did little to clarify the situation. The Deputy President found that the method used by WorkPac to give the NERR to employees was a debacle and concluded that an NERR in the prescribed form had not been given to employees. As a result, the Agreement had not been validly made and could not be approved. Even if the NERR had been validly given, the Deputy President was also of the view that the Agreement was not genuinely agreed to by the employees. The Deputy President found that WorkPac had not taken reasonable steps to explain the terms of the Agreement and the effect of those terms to employees. The Deputy President also concluded that the Agreement did not pass the BOOT, as it contained provisions that left employees worse off than if they were employed under the relevant Award.