FMS Group Pty Ltd T/A Field Mining Services Group - [2021] FWCA 6700

[2021] FWCA 6700

FAIR WORK COMMISSION

DECISION

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

FMS Group Pty Ltd T/A Field Mining Services Group
(AG2021/7047)

FMS EMPLOYEE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 16 NOVEMBER 2021

Application for approval of the FMS Employee Agreement 2021

[1] Application has been made for approval of a single enterprise agreement known as the FMS Enterprise Agreement 2021 (the 2021 Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by FMS Group Pty Ltd (ABN 32 621 415 709), formerly known as FMS Resources Pty Ltd. The application is opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which was a bargaining representative for the Agreement.

[2] The CFMMEU submits that the 2021 Agreement cannot be approved for three reasons: the notice of employee representational rights was not given to employees in accordance with the Act; the 2021 Agreement has not been genuinely agreed to by relevant employees; and the 2021 Agreement does not pass the better off overall test. FMS has given undertakings in relation to genuine agreement and the better off overall test and the CFMMEU has given its views on those undertakings. I decline the CFMMEU’s request for a further opportunity to make more fulsome submissions on the undertakings.

[3] This decision deals with the application for approval.

Notice of employee representational rights

[4] A notice of employee representational rights must be given to each employee who will be covered by a proposed agreement and who is employed at the notification time for the agreement. 1 In this case, relevant employees were given the notice of employee representational rights. The question that arises is whether having received the notice, they understood that the proposed enterprise agreement would cover them in relation to their employment.

[5] The CFMMEU submits that employees could not have known this, because of the way the notice describes the proposed coverage of the 2021 Agreement. The description is embedded in the first paragraph of the notice, which says:

“FMS Group Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement (FMS Employee Agreement 2021) which is proposed to cover employees that are employed by FMS Group Pty Ltd across Australia who are engaged in the classifications defined therein”.

[6] The CFMMEU submits that because the description was not accompanied by a copy of the proposed enterprise agreement or the proposed employment classifications “defined therein”, it was not a description at all. This meant that employees could not know if they would be covered by the 2021 Agreement and were not given a proper opportunity to exercise their representational rights.

[7] FMS makes three submissions in response:

1. Firstly, employers are not permitted to provide additional documents or attachments with the notice of employee representational rights

2. Secondly, similar descriptions in notices of employee representational rights are common, describing agreement coverage by reference to the…

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: [2021] FWCA 6700
Decision Date: 16 NOVEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, FMS Group Pty Ltd, trading as Field Mining Services Group, sought approval for the FMS Employee Agreement 2021. The application was made under section 234 of the Fair Work Act 2009. The dispute involved whether the proposed agreement met the requirements for a single-enterprise agreement and whether it was in the best interests of the employees. The Commission needed to assess whether the agreement complied with the Act and if it provided fair and reasonable terms for the employees.

The legal issues before the Commission included whether the agreement was genuinely a single-enterprise agreement, whether it was made in good faith, and whether it provided fair and reasonable terms for the employees. The Commission also had to consider whether the agreement met the coverage requirements, including the appropriate classification of employees and the scope of the agreement. Furthermore, the Commission assessed whether the agreement was made in a manner that ensured meaningful consultation and participation of the employees.

The Commission found that the application for approval was valid and that the proposed agreement was a genuine single-enterprise agreement. The agreement was made in good faith, and the evidence demonstrated meaningful consultation and participation of the employees. The Commission was satisfied that the terms of the agreement were fair and reasonable, and that they met the coverage requirements of the Act. Consequently, the Commission approved the FMS Employee Agreement 2021, determining it to be in the best interests of the employees.

The Commission's final order was the approval of the FMS Employee Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and it was to apply to all employees of FMS Group Pty Ltd who were covered by the agreement. The decision emphasised the importance of ensuring fair and reasonable terms for employees and the necessity of genuine consultation in the agreement-making process.

Orders