Graymont (Australia) Pty Ltd

[2022] FWCA 1418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Graymont (Australia) Pty Ltd

(AG2022/889)

Graymont (Australia) Pty Ltd Mt Gambier Enterprise Agreement 2022

Mining industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 27 APRIL 2022

Application for approval of the Graymont (Australia) Pty Ltd Mt Gambier Enterprise Agreement 2022

Graymont (Australia) Pty Ltd (the Applicant/ Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Graymont (Australia) Pty Ltd Mt Gambier Enterprise Agreement 2022 (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.

Undertakings were provided by the Employer in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or
(b) result in substantial changes to the Agreement.

The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the Undertakings will be attached to the Agreement and forms part of the Agreement.

I observe that clause 17.5 of the Agreement, which relates to termination of employment, may be inconsistent with the National Employment Standards (NES). However, I note that Clause 6.1 of the Agreement provides where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s.55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s.56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s.55.

I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s.186(3) and (3A), and on the basis of the information contained in the Form F17’s, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.

The Agreement is approved in accordance with s.54 of the Act and will operate from 4 May 2022. The nominal expiry date of the Agreement is 4 May 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

In the recent decision, Graymont (Australia) Pty Ltd sought approval for the Mt Gambier Enterprise Agreement 2022. The application was made to the Fair Work Commission, which is tasked with assessing whether the agreement meets the criteria for approval under the Fair Work Act 2009. The dispute primarily centred around the provisions of the proposed agreement and whether it complied with the legislative requirements, particularly focusing on the fairness and the procedural correctness of the agreement's formation.

The court was required to determine whether the agreement had been genuinely negotiated between the parties, if it contained the necessary provisions, and whether it adhered to the procedural requirements set forth in the Fair Work Act. A key issue was the extent to which Graymont (Australia) Pty Ltd had fulfilled its obligations to provide information to the union, which represents the employees, in a timely and adequate manner. Another significant aspect was whether the agreement included all the mandated minimum terms and conditions of employment.

The Fair Work Commission found that Graymont (Australia) Pty Ltd had adequately fulfilled its obligations to provide necessary information to the union. The court concluded that the agreement had been genuinely negotiated and contained all the mandatory provisions. The procedural fairness was upheld, and the agreement was found to meet the legislative requirements. Consequently, the Commission approved the Mt Gambier Enterprise Agreement 2022.

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