Griffin Coal Mining Company Pty Ltd T/A Griffin Coal
[2018] FWCA 1575
•16 MARCH 2018
| [2018] FWCA 1575 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Griffin Coal Mining Company Pty Ltd T/A Griffin Coal
(AG2018/551)
GRIFFIN COAL (MAINTENANCE) ENTERPRISE AGREEMENT 2018
Coal industry | |
DEPUTY PRESIDENT BULL | SYDNEY, 16 MARCH 2018 |
Application for approval of the Griffin Coal (Maintenance) Enterprise Agreement 2018 – Agreement approved. Undertaking provided.
[1] An application has been made by the Griffin Coal Mining Company Pty Ltd T/A The Griffin Coal Mining Company (the applicant/Griffin Coal) for the approval of an enterprise agreement known as the Griffin Coal (Maintenance) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Agreement is a single enterprise agreement.
[3] The Agreement operates to the exclusion of any modern award or other industrial instrument. 1 The previous enterprise agreement covering Griffin Coal maintenance employees, the Griffin Coal (Maintenance) Collective Agreement 2012 was terminated by the Fair Work Commission (the Commission) effective from 10 July 2016.2
[4] The Agreement applies to all employees engaged by Griffin Coal in relation to maintenance or repair work conducted by an employee on any plant or equipment used at any Griffin coal mining operation in the Collie coal basin.
[5] At the time of voting for the Agreement there were 40 employees covered by the Agreement. Of those 40 employees, 32 cast votes with 26 voting to approve the Agreement.
[6] As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.
Background
[7] The Agreement arises out of enterprise negotiations between Griffin Coalandtheir maintenance employees represented by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU). Throughout the negotiations Griffin Coal sought to have cost saving and efficiencies reflected in the Agreement in light of the financial and trading difficulties it faced. This approach led to disputation between the parties and to the involvement of the Commission as presently constituted, after Griffin Coal filed a bargaining dispute notice pursuant to s. 240 of the Act on 7 April 2017.
[8] Applications made by the AMWU on 7 March and 7 April 2017 requesting bargaining orders were ultimately discontinued.
[9] The negotiation of the Agreement involved the maintenance employees taking protected industrial action in the form of a withdrawal of their labour. Griffin Coal continued to operate with the use of contractors to perform maintenance work.
[10] Despite the lengthy and at times acrimonious negotiation process, the Commission is confident that working relationship between the parties can be restored and that the Agreement will contribute towards creating a future for Griffin Coal and their maintenance employees.
Better off overall test
[11] The Commission is required to be satisfied that each employee would pass the better off overall test (BOOT) under the Agreement as compared to the relevant Award. Section 193(1) of the Act states:
“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.”
[12] The approach to applying the BOOT was stated by the Full Bench in Armacell Australia Pty and Others 3:
“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement…”
[13] As the above decision indicates, the application of the BOOT is all-embracing and comprehensive, requiring the identification of the terms which are more beneficial and those which are less beneficial for an employee. An overall assessment as to whether an employee would be better off under the Agreement is then undertaken by the Commission.4
[14] I accept that the Black Coal Mining Industry Award 2010 (the Award) is the relevant reference instrument for the purpose of applying the better off overall test (BOOT) as required under s.186 of the Act.
[15] The terms and conditions under the Agreement which are more beneficial than the Award include:
• the ordinary hourly rates of pay;
• long term illness and accident insurance;
• redundancy entitlements and payment;
• preservation of long service leave;
• payment for and conversion of personal leave; and
• public holidays.
[16] In respect of terms and conditions less beneficial than the Award, these are stated by the applicant as being:
• a reduced second break for a 12 hour shift;
• start arrangements where employees start work at the work location; and
• a change to the deduction calculation for personal/carer’s leave.
[17] The Agreement provides for even time rosters and a mechanism for employees to work 12 hour shifts averaging 42 hours a week.
[18] The ordinary hourly rates of pay for employees will increase by the ‘All groups CPI’ for Perth for the previous full financial year up to a maximum of 1.5%, on the first full pay period 24 months after the commencement date of the Agreement, and a further 1.5%, 36 months after the commencement date. 5
[19] On 7 March 2018, the Commission wrote to Griffin Coal raising a number of issues relating to the Award and the Agreement comparison which is required for the purposes of the BOOT. These matters related to the part time and casual clauses of the Agreement and the meaning of ‘additional payments’ referred to in clause 13.4 of the Agreement.
[20] The Commission is satisfied with the response provided by Griffin Coal in relation to part time employment and the BOOT.
[21] Griffin Coal has advised that ‘additional payments’ is a reference to:
• Roster change penalty;
• Shift loading;
• Penalty and overtime rates;
• Emergency call outs;
• Break penalty;
• Casual loading; and
• Relief supervisor allowance.
Undertaking
[22] Griffin Coal has provided an undertaking that casuals will be paid for a minimum of 4 hours on each engagement. The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure B to the Agreement.
[23] Pursuant to s.190(4) of the Act, the views of the AMWU as the bargaining representative were sought in respect of the undertaking. The AMWU advised they were content with the undertaking provided. The undertaking will not cause financial detriment to any employee covered by the Agreement and will not result in a substantial change to the Agreement.
[24] Taking into account the rates of pay and other more beneficial provisions and entitlements under the Agreement for all classifications, and balancing these benefits with the terms of the Agreement that are less beneficial than the Award, I am satisfied that each Award covered employee and each prospective Award covered employee would be better off overall if the Agreement applied to them.
Explanation of the Agreement
[25] Section 186 of the Act sets out a number of general requirements for approval of an enterprise agreement, one of which is that an employer must ‘take all reasonable steps’ to ensure that the terms of the Agreement and the effect of those terms are explained to the relevant employees. 6 A failure to comply with this pre-approval requirement will preclude a proposed agreement from being an agreement capable of being approved by the Commission.7
[26] In The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd 8 the Full Bench discussed the construction of the expression ‘all reasonable steps’ in the following manner:
“[33] The expression “all reasonable steps”, and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers' Union, New South Wales.9 The following propositions may be derived from the Court’s analysis:
• reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;
• the obligation to take “reasonable steps” depends on the particular circumstances existing at the time the obligation arises; and
• a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).
[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd10 the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:
‘In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavours in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.’
[35] That proposition appears to us to be equally applicable to consideration of whether an obligation to take all reasonable steps has been complied with.”
[27] Having regard to the consultation process set out at question 2.6 of the statutory declaration (Form F17) of Mr Terry Gray, the applicant’s Chief Operating Officer, which the AMWU has advised that it agrees with, 11 and having regard to the authorities above, I am satisfied that reasonable steps were taken to explain the terms of the Agreement to employees as required by s.180(5) of the Act.
[28] I am further satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[29] The Agreement is approved with the accompanying undertaking in relation to casual employment.
[30] The AMWU was an employee organisation involved in negotiations for the Agreement as a bargaining representative. Mr Brant Softley of the AMWU has filed a statutory declaration (Form F18) stating that the AMWU supports the approval of the Agreement and agrees with the matters contained in the applicant’s statutory declaration. The AMWU has stated that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the AMWU.
[31] In accordance with s.54(1)(b) of the Act and clause 4.1 of the Agreement, the Agreement will commence operation 7 days after Commission approval of the Agreement.
[32] The nominal expiry date of the Agreement is 4 years from the date of commencement of the Agreement. 12
DEPUTY PRESIDENT
1 Clause 6.2
2 [2016] FWCA 2312, this decision was upheld on appeal [2016] FWCFB 4620
3 [2010] FWAFB 9985 at [41]
4 See also AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; National Tertiary Education Union v University of New South Wales[2011] FWAFB 5163; Solar Systems Pty Ltd [2012] FWAFB 6397
5 Clause 13.6
6 S.186(2)(a) requires ‘genuine agreement’ which is defined in s.188(a)(1) and requires compliance with s.180(5) which requires an employer to take all reasonable steps to explain the terms of the Agreement and their effect
7 Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 Flick J at [91]
8 [2016] FWCFB 1926
9 [2004] NSWIRC 222; 137 IR 176 at [67]-[71]
10 [1995] TASSC 91; (1995) 5 TASR 121 at 133
11 F18 at question [5]
12 Clause 4.2
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