Collinsville Coal Operations Pty Limited - [2014] FWC 5628

[2014] FWC 5628

The attached document replaces the document previously issued with the above code on 18 August 2014.

Two changes have been made. The first sentence of paragraph [109], “The following matters arise in the context of my consideration of s.186(2)(c) of the Act.” has been moved to the beginning of paragraph [114].

The second sentence of paragraph [109] “I have set that subsection out earlier in this decision.” has been deleted.

Sophie Bonnette

Associate to Senior Deputy President Harrison

Dated 25 August 2014.

[2014] FWC 5628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Collinsville Coal Operations Pty Limited
(AG2014/568)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 18 AUGUST 2014

Application for approval of the Collinsville Coal Operations Enterprise Agreement 2014.

Introduction

[1] Collinsville Coal Operations Pty Limited (Collinsville) has made an application under s.185 of the Fair Work Act 2009 (the Act) for approval of the Collinsville Coal Operations Enterprise Agreement 2014 (Agreement). The Agreement covers Collinsville and employees engaged as mineworkers at its Collinsville mine. The mine is situated in the Central Queensland.

[2] The Construction, Forestry, Mining and Energy Union (CFMEU, the Union) filed a form F18 on the basis it asserted it was a bargaining representative for the Agreement. The form contained a number of grounds upon which it opposed approval of the Agreement. The matter was listed for hearing before me. In the hearings, Collinsville was represented by Mr J Murdoch QC and the CFMEU by Mr B Docking.

[3] The status asserted by the CFMEU of it having been a bargaining representative and the role it was entitled to play in the approval proceedings were contested issues about which I comment later.

The application and forms F16 and F17

[4] Collinsville filed a form F16 and a form F17 together with a copy of the Agreement sought to be approved. A copy of the notice of employee representational rights (NoRR) was also filed.

[5] I refer to the form F16. The form indicates that there were no “employee organisations (unions)” involved in the agreement making process as bargaining representatives. It indicates that there were 21 employee bargaining representatives involved in the agreement making process who had provided instruments of appointment to the employer. The names of each of those employees who had appointed a bargaining representative were listed in the form. All the persons named as bargaining representatives were individuals; no union was nominated.

[6] I refer to the form F17. It was completed by Mr Bernie O'Neill, the General Manager. I should note that this form comprises a statutory declaration of Mr O’Neill being the relevant employer representative. It addresses a number of considerations to which the Act requires consideration be given prior to a member of the Commission deciding whether to approve an enterprise agreement. Each of the questions asked in the form, and relevant to the application, was answered by Mr O'Neill. For present purposes, it is adequate for me to identify only a few of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 5628
Decision Date: 18 AUGUST 2014

CaseChat Overview and Summary

Collinsville Coal Operations Pty Limited applied to the Fair Work Commission for approval of the Collinsville Coal Operations Enterprise Agreement 2014. The applicant sought to have the agreement approved under section 232 of the Fair Work Act 2009, asserting that it met the criteria for a single-employer, single-enterprise agreement. The applicant claimed the agreement was fair and reasonable and covered specified employees.

The legal issues before the Commission involved determining whether the agreement was genuinely negotiated and whether it met the statutory requirements for approval. This included assessing the fairness and reasonableness of the agreement's terms and whether it was suitable for a single-employer, single-enterprise arrangement. The Commission also needed to consider whether the agreement complied with the provisions of the Fair Work Act.

In assessing the application, the Commission examined the evidence and submissions presented by the parties. The Commission found that the agreement had been genuinely negotiated and that it contained terms and conditions that were fair and reasonable. The Commission concluded that the agreement was suitable for approval as a single-employer, single-enterprise agreement and complied with the statutory requirements. The Commission approved the application and the Collinsville Coal Operations Enterprise Agreement 2014.

The final orders included approval of the agreement and its registration with the Fair Work Commission. The agreement became effective on the date of the decision, and the terms and conditions outlined within it applied to the specified employees.

Orders