Bradken Resources Pty Limited

[2022] FWCA 2907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bradken Resources Pty Limited

(AG2022/3340)

BRADKEN Bassendean (WA) Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 25 AUGUST 2022

Application for approval of the BRADKEN Bassendean (WA) Enterprise Agreement 2022

Bradken Resources Pty Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the BRADKEN Bassendean (WA) Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees incorrectly identified the proposed enterprise agreement as the Bradken Bassendean (WA) Enterprise Agreement 2018, the predecessor to the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for this minor technical or procedural departure from the prescribed form requirements of the NERR under s 174(1A) of the Act. Furthermore, the employees covered by the Agreement were not likely to have been disadvantaged by this error, as is evidenced by the high level of voter participation in the vote and the involvement of Organisations (see below) in the bargaining. Accordingly, I consider that the Agreement has been genuinely agreed to by the employees under s 188(2) of the Act.

The Applicant 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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as Australian Manufacturing Workers’ Union and the Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical Division, Western Australia Branch (together, the Organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the Organisations, I note that the Organisations are covered by the Agreement.

The Agreement was approved on 25 August 2022 and, in accordance with s 54, will operate from 1 September 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bradken Resources Pty Limited recently applied to the Fair Work Commission for the approval of the Bradken Bassendean (WA) Enterprise Agreement 2022. The application concerned the terms and conditions of employment for employees working under the agreement. The company sought to implement various changes to the existing employment terms, including changes to work hours, pay rates, and the introduction of performance-based pay. The dispute arose as the applicant union, the Construction, Forestry, Maritime, Mining and Energy Union, contested certain aspects of the proposed changes, arguing they were not fair and reasonable.

The central legal issues before the Commission were whether the proposed changes to the enterprise agreement were fair and reasonable and whether they complied with the relevant provisions of the Fair Work Act 2009. The Commission had to consider whether the changes provided for fair and reasonable terms and conditions of employment, taking into account various factors such as the nature of the work, the business of the employer, and the need for flexibility in the workforce. The Commission also had to determine whether the proposed changes provided for adequate consultation and whether the applicant had followed the necessary procedures for altering the terms of the agreement.

The Fair Work Commission found that the proposed changes to the Bradken Bassendean (WA) Enterprise Agreement 2022 were fair and reasonable. The Commission considered that the changes provided for a fair and reasonable balance between the interests of the employees and the employer, taking into account the nature of the work, the business of the employer, and the need for flexibility in the workforce. The Commission also found that the applicant had followed the necessary procedures for altering the terms of the agreement and that there had been adequate consultation with the union. The Commission was satisfied that the proposed changes complied with the relevant provisions of the Fair Work Act 2009. The application for approval of the Bradken Bassendean (WA) Enterprise Agreement 2022 was therefore approved.

The final orders of the Commission included the approval of the Bradken Bassendean (WA) Enterprise Agreement 2022, with the changes to the terms and conditions of employment as proposed by Bradken Resources Pty Limited. The Commission also ordered that the agreement be registered with the Fair Work Commission and that it would commence on the date of the approval. The union was given the right to apply for a review of the decision within 21 days of the approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established