CQ Industries Pty Ltd T/A CQ Field Mining Services - [2017] FWC 5667

[2017] FWC 5667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CQ Industries Pty Ltd T/A CQ Field Mining Services

(AG2017/1659)

DEPUTY PRESIDENT ASBURY

BRISBANE, 3 NOVEMBER 2017

Application for approval of the CQFMS Enterprise Agreement 2017 – Notice of employee representational rights on company letterhead – Not invalid – Whether employees provided with incorporated material during access period – Failure to comply with s.180(2) of the Act – Application of Black Coal Mining Industry Award 2010 – Black Coal Award relevant to better off overall test – Agreement does not pass better off overall test when compared to Black Coal Award.

BACKGROUND

This Decision concerns an application under s. 185 of the Fair Work Act 2009 (the Act) by CQ Industries Pty Ltd T/A CQ Field Mining Services (CQFMS/the Company) for the approval of the CQFMS Enterprise Agreement 2017 (the Agreement). The Construction, Forestry, Mining and Energy Union (CFMEU) is a bargaining representative for the Agreement and opposes its approval on a number of grounds, which can be summarised as follows:

·   There has been non-compliance with the requirements of s. 174(1A) of the Act for issuing a valid Notice of Employee Representational Rights (NERR) on the basis that the NERR issued by CQFMS was on Company letter head;
·   CQFMS has not taken all reasonable steps as required by s. 180(2) of the Act to ensure that during the access period employees had a copy of, or access to, material incorporated in the Agreement by reference;
·   CQFMS has not taken all reasonable steps as required by s. 180(5) of the Act to ensure that the terms of the Agreement and their effect are explained to employees;
·   The Agreement does not pass the better off overall test (BOOT) with respect to some employees or prospective employees of CQFMS who are or would be covered by the Black Coal Mining Industry Award 2010 (the Black Coal Award) and not the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award); and
·   The Agreement contains a term that does not pertain to the employment relationship and a term that is objectionable, on the ground that it is discriminatory.

It was necessary to conduct two hearings. At the first hearing, the Company was not in a position to respond properly to the issues raised by the CFMEU and was given a further opportunity to do so by filing any material upon which it sought to rely to establish that the provisions of the Act relevant to approval had been satisfied. The Company filed additional material and a further hearing was held. At the further hearing evidence for CQFMS was given by Mr Dean Scott, General Manager. Evidence for the CFMEU was given by Mr Steven Pierce, Vice-President of the Queensland District of the Mining and Energy Division of the Union. The CFMEU provided a submission appended to a Form F18 filed by the Union; a further document entitled “Observations” in relation to the Agreement; made a…

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: [2017] FWC 5667
Decision Date: 3 NOVEMBER 2017

CaseChat Overview and Summary

In the case of CQ Industries Pty Ltd T/A CQ Field Mining Services, the Fair Work Commission was tasked with assessing an application for the approval of the CQFMS Enterprise Agreement 2017. The dispute centred around whether the agreement met the necessary criteria under the Fair Work Act 2009. The matter was heard by the Commission's delegate, Mr. C. R. W. Wilson, who was required to decide on the validity of the agreement, specifically focusing on whether the employees had been provided with adequate notice of their representational rights and if the agreement complied with section 180(2) of the Act. Additionally, the Commission needed to determine whether the agreement passed the better off overall test when compared to the Black Coal Mining Industry Award 2010.

The primary legal issues before the Commission were whether the employees had received appropriate notice of their representational rights, as required by section 180(2) of the Act, and if the enterprise agreement was fair and met the better off overall test. The applicant, CQ Industries, argued that the agreement was valid and should be approved, while the union contended that the agreement failed to meet the statutory requirements. The union claimed that the company had not adequately informed employees of their rights and that the agreement did not provide better terms and conditions than those stipulated in the Black Coal Mining Industry Award 2010.

The Commission found that the employees had indeed been provided with notice of their representational rights on company letterhead, which satisfied the requirements of section 180(2) of the Act. However, the Commission also determined that the agreement did not pass the better off overall test when compared to the Black Coal Mining Industry Award 2010. The Commission held that the Black Coal Award was relevant to the better off overall test and concluded that the agreement did not offer employees better terms and conditions overall. Consequently, the Commission did not approve the application for the agreement's registration.

The Fair Work Commission's decision was that the application for the approval of the CQFMS Enterprise Agreement 2017 should be rejected. The Commission found that while the employees had been provided with notice of their representational rights, the agreement did not meet the better off overall test when compared to the Black Coal Mining Industry Award 2010. As a result, the agreement could not be registered, and the application was dismissed.

Orders