Application for approval of the Falcon Mining Pty Ltd Enterprise Agreement 2016 – Concerns about whether Agreement can be approved – CFMEU objections to approval – Effect of incorrect information in NERR – Effect of incorrect information in application documents including employer statutory declaration – Requirement to take all reasonable steps to give NERR to employees – No requirement for NERR to be given to each individual employee – Reasonable steps may include giving notice individually and collectively - NERR only required to be given to employees employed at the notification time - Requirement to take all reasonable steps to give an explanation of the terms of the Agreement and their effect to employees – Other reasonable grounds for the Commission to believe that the Agreement was not genuinely agreed – Whether Agreement contains unlawful terms – Interaction between NES and Award in relation to personal/carer’s leave and public holidays – Whether exclusion of NES term can be addressed by undertaking – Whether Agreement passes the BOOT – Whether undertakings required to meet Commission’s concerns about BOOT issues result in substantial change to the Agreement – Approval refused.

1. BACKGROUND

[1] Falcon Mining Pty Ltd (Falcon) applies in accordance with Part 2-4 of the Fair Work Act 2009 (the Act) for approval of the Falcon Mining Pty Ltd Enterprise Agreement 2016 (the Agreement). The parties to the Agreement are Falcon and employees of Falcon employed in NSW (excluding the Southern Mining Region) in classifications set out in clause 8 of the Agreement. The Agreement applies to the exclusion of all Awards and other Agreements. The nominal expiry date of the Agreement is expressed to be three years from the date on which the Commission may approve the Agreement.

[2] The application for approval of the Agreement was made on 27 May 2016. The application is objected to by the Construction, Forestry, Mining and Energy Union Mining & Energy Division – Northern Mining and NSW Energy District (the CFMEU) on the basis that the CFMEU asserts that the Agreement does not meet the requirements for approval under the Act.

[3] By correspondence dated 1 June 2016, the CFMEU sought to be heard in relation to the application for approval of the Agreement and to be provided with the application documents in respect of the Agreement. The request for the provision of application documents was refused on the basis that the CFMEU did not assert that it was a bargaining representative for the Agreement. 1 The Union had access to the Agreement, which was published on the Commission’s website in accordance with usual practice for enterprise agreements awaiting approval. The CFMEU subsequently obtained the application documents from an unknown source and raised further objections on the basis of information set out in those documents.

[4] Subsequent to…

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

AGLC: Falcon Mining Pty Ltd [2016] FWC 5315
Case: [2016] FWC 5315
Decision Date: 14 SEPTEMBER 2016

CaseChat Overview and Summary

The case of Falcon Mining Pty Ltd involved an application for the approval of the Falcon Mining Pty Ltd Enterprise Agreement 2016. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) objected to the approval of the Agreement, raising concerns about the accuracy of information provided in the Notice of Employee Representation (NERR) and the employer's statutory declaration, as well as the overall content of the Agreement. The Fair Work Commission (FWC) was tasked with determining the validity of the employer's application and whether the Agreement met the necessary legal standards for approval.

The legal issues before the FWC included whether the employer had taken all reasonable steps to provide the NERR to the employees, the implications of incorrect information in the NERR and the employer's statutory declaration, and whether the Agreement contained unlawful terms. The Commission also had to consider the interaction between the National Employment Standards (NES) and the relevant Award, particularly in relation to personal/carer’s leave and public holidays. Furthermore, the FWC assessed whether the Agreement genuinely reflected the terms agreed upon by the parties and passed the Better Off Overall Test (BOOT), and if any required undertakings would substantially alter the Agreement.

In reaching its decision, the FWC noted that while the employer had made efforts to provide the NERR to employees, it had not taken all reasonable steps to ensure that each employee received the notice. The FWC found that the incorrect information in the NERR and the employer's statutory declaration, including the omission of certain employees, was significant. Additionally, the FWC identified unlawful terms within the Agreement and found that the Agreement did not genuinely reflect the agreement of the parties. The FWC concluded that the Agreement did not pass the BOOT and that the required undertakings would result in substantial changes to the Agreement.

The FWC ultimately refused the application for approval of the Falcon Mining Pty Ltd Enterprise Agreement 2016, citing the above reasons. The employer was directed to make amendments to the Agreement to address the identified issues and resubmit it for approval.

Orders