Bradken Resources Pty Ltd

[2017] FWCA 4663

[2017] FWCA 4663

FAIR WORK COMMISSION

DECISION

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

Bradken Resources Pty Ltd
(AG2017/2499)

BRADKEN INNISFAIL ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT SAMS	SYDNEY, 7 SEPTEMBER 2017

Application for approval of the Bradken Innisfail Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bradken Resources Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bradken Innisfail Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover 37 employees who are engaged in the relevant work classifications outlined in the Agreement and who are located at the Company’s premises in Innisfail, Queensland. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 6 March 2017, and voting for the Agreement’s approval took place on 13 June 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 37 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 June 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Donges, Manufacturing Manager identified the Manufacturing and Associated Industries and Occupations Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Donges said the Agreement provides for a number of more beneficial terms than the reference instrument. These include more beneficial redundancy entitlements, higher rates of pay (of between 19 to 50%) as well as more beneficial shift loadings. Mr Donges said that Agreement provides for no terms which are less beneficial than the reference instrument. The Agreement provides for the mandatory flexibility and consultation terms at clauses and 6.6 and 6.5.1 respectively, and a disputes resolution procedure at clause 2.3 provides for conciliation and arbitration by the Commission.

[4] During a hearing of the application on 24 August 2017, Mr Donges and Ms M Romeo, of Australian Industry Group appeared for the applicant. Ms Romeo outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. I raised with Ms Romeo some potential issues with the Agreement, which included in relation to the amount of notice employees receive if they are dismissed in the first six months of employment, whether employees were entitled to representation under the dispute resolution procedures (in cl 2.3 of the Agreement), how annual leave is calculated under cl 5 of the Agreement and in relation to the employees’ entitlement to compassionate leave under the Agreement. Ms Romeo advised me that the Company would offer undertakings in relation to each of these issues, which it did on 29 August 2017. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. I am satisfied that the Agreement passes the BOOT.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Bradken Innisfail Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 31 August 2017 and have a nominal expiry date of 30 September 2018.

DEPUTY PRESIDENT

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