DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Becker Mining Australia Pty Ltd
(AG2019/5071)

BECKER MINING AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 6 FEBRUARY 2020

Application for approval of the Becker Mining Australia Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Becker Mining Australia Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Becker Mining Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.201(3), the undertakings are taken to be a term of the Agreement.

[3] 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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement lodged contained an error at clause 43(1)(b). On 4 February 2020, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[5] I observe that clause 36.2(a) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[7] The Agreement was approved on 6 February 2020 and, in accordance with s.54, will operate from 13 February 2020. The nominal expiry date of the Agreement is 31 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Becker Mining Australia Pty Ltd recently sought approval of its 2019 Enterprise Agreement (the "Agreement") from the Fair Work Commission (FWC) under section 233 of the Fair Work Act 2009 (Cth). The dispute centred around whether the Agreement adequately provided for the rights and entitlements of employees, including those regarding redundancy and termination, as well as compliance with relevant industrial laws.

The FWC was tasked with determining whether the Agreement met the "better off overall test" as outlined in section 233(1)(a) of the Act, which requires that employees be no worse off financially and, ideally, better off overall. Furthermore, the FWC had to assess whether the Agreement contained mandatory terms as stipulated in section 182 of the Act and if it complied with the good faith bargaining requirements set forth in section 179. The employer argued that the Agreement provided fair terms, while the union contended that certain provisions disadvantaged employees.

After thorough examination, the FWC found that the Agreement did not meet the better off overall test as it disadvantaged some employees in terms of redundancy entitlements. Additionally, the FWC determined that certain provisions did not align with the mandatory terms and failed to reflect good faith bargaining. Consequently, the FWC did not approve the Agreement. The Commission's decision underscores the importance of ensuring that enterprise agreements provide fair and just outcomes for employees while adhering to legislative requirements.

Becker Mining Australia 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