At The Face Mining Pty Ltd

[2019] FWC 2451

[2019] FWC 2451

FAIR WORK COMMISSION

DECISION

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

At The Face Mining Pty Ltd
(AG2018/5663)

DEPUTY PRESIDENT MASSON MELBOURNE, 11 APRIL 2019

Application for approval of the AT THE FACE Mining Pty Ltd Enterprise Agreement 2017-2020.

[1] An application has been made for approval of the AT THE FACE Mining Pty Ltd Enterprise Agreement 2017-2020 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by At The Face Mining Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] A notice of employee representational rights was provided to employees on 27 August 2018 and the notice complied with the regulations. The Applicant states that employees were provided with access to the Agreement and information about terms and the effects of the terms of the Agreement on 15 September 2018.

[3] The Applicant states that employees were notified of the time, place and method of voting via an email to employees on 7 September 2018 and that voting occurred on 21 September 2018. A majority of those who voted approved the Agreement. 1

[4] The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test (the BOOT) was the Building and Construction General On-site Award 2010 (the Building Award). 2 However, in subsequent correspondence the Applicant identified by way of an undertaking that the relevant award was the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle Award).3

[5] The statutory declaration noted that some provisions in the Agreement were more beneficial than the Award or were not conferred by the Award. No less beneficial terms were identified.

Commission Concerns with Agreement

[6] In reviewing the Agreement for approval, the Commission identified a number of preliminary concerns in relation to the Agreement and supporting documentation. These preliminary concerns related to pre-approval requirements. The Commission wrote to the Applicant on 19 February 2019 requiring a response to those preliminary concerns.

[7] A response to the Commission’s preliminary concerns was received from the Applicant on 1 March 2019 which included a revised Form F17 that sought to address the Commission’s preliminary concerns. The Commission on receipt and review of the revised Form F17 completed its full assessment of the Agreement.

[8] In completing its full assessment of the Agreement for approval, the Commission identified a number of further concerns in relation to the Agreement and supporting documentation. These included National Employment Standards (NES) compliance and BOOT assessment considerations. The Commission wrote to the Applicant on 29 March 2019 and identified the following issues requiring a response.

(1) NES Concerns:

a. Annual leave – clause 6:The Agreement expresses the annual leave entitlement as 20 days of annual leave per year rather than as 4 weeks.

b. Public holidays – clause 12:The Agreement does not provide that employees are entitled to any other public holidays declared or prescribed.

(2) The Relevant Award:

In response to preliminary concerns raised, the Applicant provided an undertaking that for the purposes of clause 4.B of the Agreement, the relevant Award is the Vehicle Manufacturing, Repair, Services and Retail Award 2010. However, based on clause 4.A of the Agreement, the notice of employee representational rights (NERR), the Form F17 and Appendix 11 classifications; it appears that the Building Award is the relevant Award for the purposes of assessing the BOOT.

Clarification was sought so as to enable the proper conduct of the BOOT assessment.

(3) BOOT Issues:

The Agreement states that a number of entitlements are paid in accordance with Appendices and Tables which do not appear to be contained in the Agreement. The Agreement also contains a number of inconsistencies which make it difficult to accurately assess the BOOT. The following examples were identified as to why it is difficult to conduct the BOOT:

•  It appears Appendix 11 rates are not rates which apply to employees covered by the Agreement, but rather they are merely the Award rates which have been left in the Agreement for the purposes of comparison.

•  Clause 9 states that Saturday rates are set out in Appendix 1(C). The Agreement does not contain an Appendix 1(C);

•  Clause 10 states that Sunday and Public Holiday rates are contained in Appendix 1 (D). The Agreement does not contain an Appendix 1(D);

•  Clause 11 states that the overtime penalties are contained in the loaded rates of Appendix 1(B) and (C). The Agreement does not contain Appendix 1(B) or (C);

•  In relation to causals, clauses 5B(5) and (6) states that casuals are paid in Accordance with Appendix 11(D). Appendix 11 only appears to provide the Award rates and there is no Appendix 11(D); and

•  Further, in relation to casual employees, it appears clauses 5(6) and (7) set out that casuals receive percentages based on the Agreement rates, whereas clause 5(8) appears to state casuals working overtime and non-week days will be paid according to the Award and revert to the full time rates. It is unclear how casuals would be better off overall based on clause 5(8) as well as how these clauses operate together.

(4) Genuine Agreement:

Whilst the loaded rates provided for in the Agreement appear to be above the Award rates, based on the above, it is difficult to establish how employees could have genuinely agreed to the Agreement, particularly when entitlements are either not clearly expressed or, are not expressed at all.

[9] In its correspondence to the Applicant on 29 March 2019, the Commission sought a response by the close of business on 4 April 2019. No response was received.

[10] Further correspondence was sent by the Commission to the Applicant on 8 April 2019 2018 noting that no response had been received to earlier correspondence. A reply was sought by the close of business on 10 April 2019. It was stated in that correspondence “Should no response be received by the above date/time, the Deputy President will be proceed to determine the agreement application on the material before him without further reference to you.” No response was received within the required time frame.

[11] As a consequence of the failure of the Applicant to respond to the matters raised by the Commission in respect of the Agreement application, I now intend to deal with the application on the material before me.

Statutory Provisions

[12] Section 186 requires, amongst other things, that in order for an enterprise agreement, that not is a greenfields agreement to be approved, the Commission must be satisfied that employees have genuinely agreed to it. Section 186 relevantly provides as follows:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; an

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Consideration

NES Issues

[13] The concerns raised in relation to the NES relate to provisions within the Agreement dealing with annual leave at clause 6 and public holidays at clause 12. Both clauses provide for entitlements that are deficient relative to the NES. There is no general NES precedence clause contained within the Agreement that would otherwise remedy those deficiencies.

[14] While both of the identified deficiencies are capable of being addressed by undertakings, no such undertakings have been proffered despite invitations to the Applicant to consider providing such undertakings. In the absence of such undertakings or an NES precedence clause, it follows that the identified terms of the Agreement contravene s 55 of the Act and as a consequence s 186(2)(c) of the Act is not satisfied.

BOOT Issues

[15] As detailed in paragraph [8] above, there are a number of Appendices that are referred to in the body of the Agreement that are not actually contained in the Agreement. Those missing appendices go to entitlements such as weekend and public holiday penalties, overtime penalties and casual rates of pay. There is also apparent confusion on the part of the Applicant as to the relevant underpinning award.

[16] Having regard to the combination of the omission of relevant appendices, poorly expressed entitlements, inaccuracies, conflicting provisions and the uncertainty over the relevant modern award to be applied for the purpose of conducting the BOOT, it is simply not possible for the Commission to properly undertake the BOOT assessment. As such, I cannot be satisfied that all employees that would be covered by the Agreement would be better off overall.

[17] In the absence of any submissions or undertakings from the Applicant that address the above-referred concerns, I am unable to be satisfied that employees engaged under the Agreement will be better off overall when compared against the relevant award. As a consequence I am not satisfied that the requirements of s 186(2)(d) of the Act are met.

Conclusion

[18] In order to approve the Agreement, the Commission must, as part of its consideration, be satisfied in respect of s 186(2)(c) and s 186(2)(d) of the Act. For the reasons detailed above I am not satisfied in respect of those requirements. Consequently, the application for approval of the Agreement is dismissed. An order reflecting this decision will be separately issued

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 Section 180 Fair Work Act 2009.

 2   MA000020.

 3   MA000089