Fosterville Gold Mines Pty Ltd

[2019] FWCA 1628

[2019] FWCA 1628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fosterville Gold Mines Pty Ltd
(AG2018/3374)

FOSTERVILLE ENTERPRISE AGREEMENT 2018

Mining industry
COMMISSIONER GREGORY	MELBOURNE, 13 MARCH 2019

Application for approval of the Fosterville Enterprise Agreement 2018.

[1] An application has been made by Fosterville Gold Mines Pty Ltd (“Fosterville”) under s.185 of the Fair Work Act 2009 (“the Act”) for approval of an enterprise agreement known as the Fosterville Enterprise Agreement 2018 (“the Agreement”). It is a single enterprise agreement.

[2] The Agreement is intended to cover around 308 employees located at the Fosterville Gold Mine in Fosterville, Victoria. It is noted that 220 employees voted in the ballot to approve the Agreement and 166 voted in favour of approval.

[3] After reviewing the application and the F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission subsequently sought clarification from the Applicant about a number of matters.

[4] A number of these related to compliance with the requirements contained in the National Employment Standards. The Applicant has accordingly provided a series of undertakings that respond to these issues. These relate to the definition of continuous shiftworker, the entitlement to ten days of personal/carer’s leave, the entitlement to take emergency services leave in appropriate circumstances, and the obligations relating to the provision of notice of termination.

[5] Section 186(1) of the Act requires the Commission on application for approval of an enterprise agreement to approve the Agreement “if the requirements set out in this section and section 187 are met.” 1 Section 186(2), firstly, requires that the Commission must be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement,”2 and, secondly, that “the agreement passes the better off overall test.”3

[6] Section 188 of the Act continues to deal with the circumstances in which employees can be said to have genuinely agreed to an enterprise agreement. It states:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) sub sections 180(2), (3) and (5) (which deal with pre approval steps);

(ii) sub section 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.” 4

[7] As indicated, s.186(2)(d) requires that the Commission must be satisfied that the Agreement passes the “better off overall test.” The requirements of the test are dealt with in s.193(1) in the following terms:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as At the test time, that each Award covered employee, and each prospective Award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern Award applied to the employee.” 5

[8] Section 193(6) also provides that the “test time” is the time the application for approval is made under section 185.

[9] It is well established that the application of the “better off overall” test requires the identification of terms and conditions in a proposed Agreement that are more beneficial for the employees, and those which are less beneficial, with an overall assessment then being made about whether the employees would be “better off overall” under the Agreement.

[10] In terms of satisfaction with the requirements of the better off overall test it is noted at the outset that the proposed Agreement does not provide for shift or weekend penalty entitlements, or any additional overtime rates. The casual loading is also expressed as being inclusive of overtime, weekend and public holiday penalties.

[11] The Applicant subsequently provided detailed information about matters raised by the Commission, including the earnings that would be received under the various rosters worked at the site. These were provided in respect of the underground operations classifications which are understood to cover the greatest number of employees. Further details were also provided in respect of the mine geology classifications and the various processing classifications. Further information was also provided in respect of the surface maintenance and light vehicle maintenance classifications. It can be noted that the entitlements to be received under the terms of the Agreement in these various classification areas are well in excess of those provided for under the underlying Award, and that the rates are generally adequate to compensate for the fact that the employees do not receive the various penalty or overtime entitlements that would otherwise apply under the Award.

[12] It is also noted that the fatigue management practices which exist at the site mean that employees are limited in terms of the numbers of additional shifts that they are able to work. However, in regard to the light vehicle maintenance classifications it was noted that in some scenarios employees may not be better off overall under the Agreement. While there are no employees currently employed in these particular classifications the Applicant has provided an additional undertaking to address this potential issue in respect of any future employees who may be employed at these pay points.

[13] The Applicant has also provided further details in regard to the roster pattern for casual employees, and for employees working in the underground stream classifications. It has also been provided with a further explanation regarding the rates to be paid to processing stream employees.

[14] As indicated, the Applicant has also proposed that various undertakings be provided. A copy of those undertakings is attached in Annexure A. I am satisfied that they will not cause financial detriment to any employee to be covered by the Agreement, and that they do not constitute a substantial change to the Agreement. The undertakings are accordingly approved and will now be taken to be a term of the Agreement.

[15] I am otherwise satisfied that each of the requirements of ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[16] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[17] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 March 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE502267  PR705782>

Annexure A

 1   Fair Work Act 2009 (Cth) s 186(1).

 2   Fair Work Act 2009 (Cth) s 186(2)(a).

 3   Fair Work Act 2009 (Cth) s 186(2)(b).

 4   Fair Work Act 2009 (Cth)s 188.

 5   Fair Work Act 2009 (Cth) s 193.