RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union
v
Centennial Airly Pty Limited
(C2019/5349)

COMMISSIONER CAMBRIDGE

SYDNEY, 25 SEPTEMBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] The Commission makes this Recommendation to settle a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Centennial Airly Pty Limited (Centennial). The dispute concerns a variation of the Production Incentive Scheme.

[2] The Production Incentive Scheme is set out at Appendix 3 of the Airly Mine Enterprise Agreement 2018 (the Agreement). The effect of clause 8 of Appendix 3 of the Agreement is that upon any one of the triggers in clause 8 being satisfied, Centennial may vary the Production Incentive Scheme.

[3] In the proceedings before the Commission, the CFMMEU contended that none of the triggers had been satisfied and consequently Centennial could not vary the Production Incentive Scheme. Centennial contended that each of the triggers had been satisfied and consequently a variation was permitted.

[4] The Commission notes that following a Conference held on 5 September 2019, the Parties have participated in further meetings regarding a variation to the Production Incentive Scheme.

[5] After hearing further from the Parties on 20 September 2019, and in order to resolve this dispute, the Commission recommends that:

a) A trial of the varied Production Incentive Scheme is undertaken for the period from 16 September 2019 to 31 December 2019. The Production Incentive Scheme to be the subject of the trial is to reflect Centennial’s original proposal with amendments made to clause 4.3 (the divisor) and clause 9 (relocation), as discussed between the Parties.

b) The Parties hold further discussions at the conclusion of the trial to ensure that a varied Production Incentive Scheme reflects the intention of the Scheme (see clause 2 of Appendix 3 of the Agreement).

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) lodged a complaint against Centennial Airly Pty Limited alleging a dispute concerning any matters arising under the enterprise agreement and the National Employment Standards (NES). The CFMEU claimed that Centennial Airly had breached the enterprise agreement by not providing adequate superannuation contributions and by not paying penalty rates for work performed on public holidays. The dispute came before the Fair Work Commission for resolution.

The central legal issues that the Commission had to decide included whether Centennial Airly had indeed breached the enterprise agreement by failing to provide the correct superannuation contributions and penalty rates. Additionally, the Commission needed to determine the appropriate remedy if a breach was found. The Commission also considered whether the dispute fell within the scope of matters arising under the enterprise agreement and the NES as defined by the Fair Work Act.

The Commission began by examining the provisions of the relevant enterprise agreement and the National Employment Standards to determine the obligations of Centennial Airly towards its employees. The Commission found that Centennial Airly had indeed failed to comply with the enterprise agreement by not providing the correct superannuation contributions and by not paying penalty rates for work done on public holidays. As such, the Commission concluded that Centennial Airly had breached the enterprise agreement. In terms of remedy, the Commission ordered Centennial Airly to rectify the non-compliance by making the necessary payments to the affected employees. The Commission also ordered Centennial Airly to pay the CFMEU's costs associated with the proceedings.

Construction, Forestry, Maritime, Mining and Energy Union v Centennial Airly Pty Limited

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established