[2016] FWCA 792 [Note: An appeal pursuant to s.604 (C2016/2755) was lodged against this decision - refer to Full Bench decisions dated 24 March 2016 [[2016] FWCFB 1867] , 3 May 2016 [[2016] FWCFB 2432] and 31 May 2016 [[2016] FWCFB 3492] respectively for results of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Groote Eylandt Mining Company Pty Ltd T/A GEMCO
(AG2015/7568)

GROOTE EYLANDT MINING COMPANY ENTERPRISE BARGAINING AGREEMENT 2015

Northern Territory
COMMISSIONER GREGORY	MELBOURNE, 5 FEBRUARY 2016

Application for approval of the Groote Eylandt Mining Company Enterprise Bargaining Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Groote Eylandt Mining Company Enterprise Bargaining Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Groote Eylandt Mining Company Pty Ltd T/A GEMCO. The Agreement is a single enterprise agreement.

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

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the United Voice, the Maritime Union of Australia, the Transport Workers’ Union of Australia, and the Construction, Forestry, Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2016. The nominal expiry date of the Agreement is 30 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Groote Eylandt Mining Company Pty Ltd trading as GEMCO, applied to the Fair Work Commission for approval of the Groote Eylandt Mining Company Enterprise Bargaining Agreement 2015. The primary concern raised in the application was the absence of a dispute resolution clause within the agreement, which was necessary to ensure effective and timely resolution of any workplace disputes that might arise. The dispute was brought before the Fair Work Commission, Australia's workplace relations tribunal.

The legal issues at hand centred on whether the absence of a dispute resolution clause rendered the agreement invalid and, if so, whether any such defect could be rectified in a way that would satisfy the requirements of fairness and procedural justice. The applicant argued that the absence of such a clause did not invalidate the agreement, while the respondent contended that without a proper dispute resolution mechanism, the agreement could not be approved.

The Fair Work Commission held that the absence of a dispute resolution clause did indeed invalidate the agreement. However, the Commission found that the defect could be remedied by inserting a clause that provided for the resolution of disputes through conciliation and, if necessary, arbitration. The Commission determined that this approach would ensure that disputes were resolved in a fair and timely manner, thereby upholding the principles of procedural justice. Consequently, the application for approval was granted, subject to the addition of the specified dispute resolution clause.

The final orders of the Commission included the approval of the Groote Eylandt Mining Company Enterprise Bargaining Agreement 2015, contingent upon the inclusion of a clause for dispute resolution through conciliation and, if necessary, arbitration. This clause was to be drafted in accordance with the Commission's directions to ensure it met the necessary standards of fairness and effectiveness.

Groote Eylandt Mining Company Pty Ltd T/A GEMCO

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established