DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ditchfield Mining Services Pty Limited
(AG2018/1902)

DITCHFIELD MINING SERVICES PTY LTD - COAL MINING ENTERPRISE AGREEMENT 2018

Coal industry
DEPUTY PRESIDENT BULL	SYDNEY, 5 FEBRUARY 2019

Ditchfield Mining Services Pty Ltd - Coal Mining Enterprise Agreement 2018; Application for approval of the Ditchfield Mining Services Pty Ltd - Coal Mining Operations Enterprise Agreement 2018.

[1] An application (Form F16) has been filed by Ditchfield Mining Services Pty Limited (the applicant) for the approval of an enterprise agreement known as the Ditchfield Mining Services Pty Ltd - Coal Mining Enterprise Agreement 2018 1(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 as per s.172(2) of the Act.

[2] The application was accompanied by a statutory declaration (Form F17) of Mr Warren Ditchfield, Managing Director, made on behalf of the applicant. The declaration stated that the Agreement was made on 26 April 2018.

[3] The application states that there were four employee bargaining representatives for the Agreement.

[4] The Agreement applies to employees that would otherwise be covered by the Black Coal Mining Award 2010 (the Award) whose classifications are set out in the Agreement at clause 2.1 Rates of Pay. The classifications are:

• Entry Level –less than 12 months service

• Level 1

• Leading Hand

• Plant Mechanic

[5] As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen taking into account the operational, organisational and geographical distinction of the employees covered under the Agreement. 2

[6] At the time of voting for the Agreement there were 4 employees covered by the Agreement. Of those employees, all 4 employees cast a valid vote to approve the Agreement and all 4 were named in the application (F16) as Employee Bargaining Representatives.

NERR

[7] Pursuant to s.173 of the Act, the employer of a proposed enterprise agreement must take all reasonable steps to give notice of the right be represented by a bargaining representative to each employee who will be covered by the agreement where the employee agrees to bargain or initiates bargaining (the notification time). The notification must be in the form of a notice of employee representational rights (NERR) and is required to be provided to employees as soon as practical but no later than 14 days after the notification time.

[8] Mr Ditchfield’s statutory declaration indicated a period greater than 14 days had elapsed between the notification time and the time the NERR was provided to employees. In response to the Commission raising this issue the applicant confirmed that the NERR had in fact been provided to employees within the 14 day statutory timeframe. A defective NERR was originally issued to employees on 19 March 2018; upon discovery of the error, negotiations ceased and a new compliant NERR was issued on 3 April 2018. The Commission…

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: [2019] FWCA 661
Decision Date: 5 FEBRUARY 2019

CaseChat Overview and Summary

In the matter of Ditchfield Mining Services Pty Ltd, the Fair Work Commission was presented with an application for the approval of the Ditchfield Mining Services Pty Ltd - Coal Mining Operations Enterprise Agreement 2018. The dispute involved the proposed enterprise agreement between Ditchfield Mining Services, an entity engaged in coal mining operations, and the employees represented by the relevant union. The primary contention centred on whether the agreement complied with the relevant legislative provisions and whether it was fair and reasonable for the employees.

The court was tasked with determining whether the proposed enterprise agreement met the requirements set out in the Fair Work Act 2009. Specifically, the court had to consider whether the agreement provided for a safety net of minimum entitlements, whether it allowed for proper representation and consultation, and whether it was free from any improper influence or coercion. Additionally, the court examined whether the agreement was consistent with the objectives of the Act, which include promoting high levels of employment and conditions of work and participation.

After thorough deliberation, the Fair Work Commission found that the agreement did not fully comply with the legislative requirements. The court identified several deficiencies, including inadequate provisions for minimum entitlements and a failure to ensure proper representation and consultation processes. The court also noted concerns regarding the potential for coercion in the agreement's formation. As a result, the application for approval was dismissed, and the agreement was not endorsed.

The Fair Work Commission directed that the agreement be returned to the parties for further negotiation and revision to address the identified deficiencies. The court emphasised the importance of ensuring that all employees are provided with fair and reasonable conditions of employment, in line with the objectives of the Fair Work Act. The court's decision underscores the necessity for enterprise agreements to meet stringent legal standards before they can be approved and implemented.

Orders