Gold Corporation; Western Australian Mint - [2015] FWCFB 5121

[2015] FWCFB 5121

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 4 Sch. 6—Modern enterprise award

Gold Corporation; Western Australian Mint
(EM2013/37)

SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT SAMS
COMMISSIONER BULL

SYDNEY, 29 JULY 2015

Application to make a modern enterprise award to replace the Western Australian Mint Award 2005 [AN160334] - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 sch. 6 items 4, 6 - Fair Work Act 2009 ss. 134, 284 - modern enterprise award not made - Western Australian Mint Award 2005 terminated.

[1] Gold Corporation and Western Australian Mint (the applicants) have applied for a modern enterprise award to replace the Western Australian Mint Award 2005 1 (the 2005 Award). The application is made under item 4 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act).

[2] The Western Australian Mint (the Mint) is the named employer respondent to the Award. The other parties are the Australian Manufacturing Workers' Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[3] We accept the submissions of the applicants that they have standing to make this application. Gold Corporation is a statutory corporation established pursuant to the Gold Corporation Act 1987 (WA) and is the holding company of the Western Australian Mint. Another entity, GoldCorp Australia, is also a subsidiary of Gold Corporation. We also accept the submission of the applicants that they are both national system employers as defined by the Fair Work Act 2009 (Cth) (the Act), and that they both employ persons covered by the 2005 Award. It was not in issue that the 2005 Award is an enterprise award-based instrument for the purposes of item 2 of Schedule 6 of the Transitional Act, and covers employees in a single enterprise as that term is defined in item 3 of Schedule 6 of the Transitional Act.

[4] In the hearing before us Mr Allen and Ms Russo appeared, with permission, for the applicants. Ms Lim appeared for the AMWU. There was no appearance for the CEPU, although it had earlier advised it supported the submissions of the AMWU. 2 The AMWU supported the applicants’ submissions.

[5] We have decided not to make a modern enterprise award. These are our reasons for that decision.

The legislative task

[6] Other than modern enterprise awards made under Schedule 6 of the Transitional Act (Schedule 6), no newenterprise awards will be made. This is the effect of s.168C of the Act, which is contained within Part 2-3—Modern awards. It provides that the Fair Work Commission (the Commission) must not, under that Part, make a modern enterprise award or vary an award so that it becomes a modern enterprise award. There is no other Part of the Act under which a modern enterprise award may be made.

[7] The approach to be taken by the Commission when deciding whether to make a modern enterprise award and,…

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: [2015] FWCFB 5121
Decision Date: 29 JULY 2015

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Gold Corporation, seeking the creation of a modern enterprise award to replace the existing Western Australian Mint Award 2005. This award was established under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, and the proceedings hinged on provisions from the Fair Work Act 2009, particularly sections 134 and 284. The core dispute centred around the establishment of a modern enterprise award and the consequential termination of the existing award.

The legal issues at the heart of this case revolved around the procedural and substantive requirements for creating a modern enterprise award under the Fair Work Act. Specifically, the Commission had to determine whether the application met the necessary criteria for making a modern enterprise award, including ensuring that the award was consistent with the principles of the Fair Work Act and that the process adhered to the legislative requirements. Furthermore, the Commission needed to assess the implications of terminating the existing award and how this would affect the employees covered by the Western Australian Mint Award 2005.

In reaching its decision, the Fair Work Commission carefully considered the application and the statutory framework. The Commission concluded that the application did not meet the necessary criteria for making a modern enterprise award, as it did not sufficiently address the requirements under the Fair Work Act. Consequently, the application was dismissed, and the Western Australian Mint Award 2005 was terminated as a result of this decision. This outcome reflects the stringent requirements for the creation of modern enterprise awards and the importance of compliance with the legislative framework.

Orders