Dalrymple Bay Coal Terminal Pty Ltd

[2020] FWCA 2659

[2020] FWCA 2659

FAIR WORK COMMISSION

DECISION

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

Dalrymple Bay Coal Terminal Pty Ltd
(AG2020/1188)

DALRMPLE BAY COAL TERMINAL PTY LTD BULK HANDLING ENTERPRISE AGREEMENT 2020

Coal export terminals
COMMISSIONER HUNT	BRISBANE, 26 MAY 2020

Application for approval of the Dalrymple Bay Coal Terminal Pty Ltd Bulk Handling Enterprise Agreement 2020.

[1] Dalrymple Bay Coal Terminal Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Dalrymple Coal Terminal Pty Ltd Bulk Handling Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the Communications, Electrical, Electronic, Energy, Postal and Plumbing Allied Service Union of Australia (the CEPU), the Australian Manufacturing Workers’ Union (the AMWU) and the Australian Workers’ Union (the AWU) regarding the undertakings.

[3] The AWU and the CEPU each wrote to my chambers advising that each respective organisation is comfortable with the undertakings. The AMWU wrote to my chambers advising that it had no comments regarding the undertakings, and it supports the Commission determining the matter on the basis of the material before the Commission.

[4] I note that Appendix 3 of the Agreement refers to notice of termination and redundancy pay. The Appendix provides that an employee is not entitled to notice of termination or redundancy pay where the employee is offered but declines to accept an “alternative suitable role”. This appears to be inconsistent with s.120 of the Act, which provides that such circumstances, (noting the test is whether the employer “obtains other acceptable employment for the employee”) merely give rise to the right to apply to the Commission to reduce the amount of redundancy pay, rather than operating to automatically exclude the employer’s redundancy pay obligations. [my emphasis].

[5] Furthermore, the Act does not provide that an employee is excluded from their notice of termination entitlements conferred by s.117(2) of the Act because they declined an offer of suitable alternative employment.

[6] Clause 1.4 of the Agreement provides that “The National Employment Standards (NES)…… prevail over this Agreement to the extent which, in a particular respect, the NES provides for a more favourable outcome for an employee”. I note Clause 1.4 in respect of the redundancy and notice provisions with Appendix 3, and state that in my view, there would be difficulty for the Employer in attempting to enforce those relevant provisions in Appendix 3.

[7] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[8] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[9] The AMWU, the AWU and the CEPU being a bargaining representative 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) of the Act I note that the Agreement covers the AMWU the AWU and the CEPU.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 June 2020. The nominal expiry date of the Agreement is 31 March 2020.

COMMISSIONER

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Annexure A: