Gypsum Resources Australia Pty Limited Summary

[2013] FWCA 5735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gypsum Resources Australia Pty Limited
(AG2013/7791)

GYPSUM RESOURCES AUSTRALIA WORKPLACE AGREEMENT 2013

Mining industry
DEPUTY PRESIDENT BARTEL	ADELAIDE, 15 AUGUST 2013

Application for approval of the Gypsum Resources Australia Workplace Agreement 2013.

[1] An application for approval of an enterprise agreement known as the Gypsum Resources Australia Workplace Agreement 2013 (the Agreement) has been made by Gypsum Resources Australia Pty Limited (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is an application for a single-enterprise agreement.

[2] The Fair Work Commission (the FWC) raised a concern with the parties 1 as to the compliance of the provisions of the Agreement dealing with the cashing out of annual leave with the relevant provisions of the National Employment Standards.2 The employer has now provided an undertaking in accordance with s.190 of the Act. The undertaking, appended to this decision and also appended to the Agreement as Schedule 1, has addressed the stated concern and otherwise meets the requirements of s.190 of the Act. The Australian Workers Union, South Australian Branch (the AWU), being a bargaining representative for the Agreement, and four employee bargaining representatives have been consulted in relation to the undertaking and have expressed no objection.

[3] In accordance with s.201(3) of the Act, I note that the undertaking is taken to be a term of the Agreement.

[4] I am 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.

[5] The AWU has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) of the Act, I note that the Agreement covers the AWU.

[6] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 22 August 2013. The nominal expiry date of the Agreement is 1 July 2015.

DEPUTY PRESIDENT

Schedule 1

IN THE FAIR WORK COMMISSION FWC Matter No.: AG2013/7791

Applicant: GYPSUM RESOURCES AUSTRALIA PTY LTD

EMPLOYER'S UNDERTAKING

Fair Work Act 2009-s.190

Annual Leave

The Employer, Gypsum Resources Australia Pty Ltd, provides the following undertaking in relation to clause 25 of the Gypsum Resources Australia Workplace Agreement 2013:

1. Any agreement to cash out annual leave will be made in a separate written agreement between the employer and the employee concerned in accordance with s.90(2)(b) of the Fair Work Act 2009 (Cth).

Signed for Gypsum Resources Australia

Signature

Print Name

Date

1 Correspondence to the parties dated 31 July 2013

2 Section 93(2)(b) of the Act

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Gypsum Resources Australia Pty Limited applied for approval of a workplace agreement, the Gypsum Resources Australia Workplace Agreement 2013. The applicant sought approval of the agreement under the Fair Work Act 2009, asserting that it met the requirements for an enterprise agreement. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the agreement did not meet the criteria for approval as it did not comply with certain procedural and substantive requirements of the Act.

The court was required to determine whether the agreement was an enterprise agreement within the meaning of the Fair Work Act and whether it had been properly made. Key issues included whether the agreement was made without coercion, whether it had been properly negotiated, and whether it complied with the provisions of the Act, including the requirements for disclosure and the need for the agreement to cover a particular enterprise. The court also needed to consider whether the agreement complied with the better-off-overall test, ensuring that no party was worse off because of the agreement.

The court examined the procedural fairness of the agreement's negotiation and execution, finding that the process had been conducted appropriately. It also assessed the substantive content of the agreement, focusing on whether the agreement met the better-off-overall test. The court concluded that the agreement was a genuine enterprise agreement, made without coercion, and that it complied with all statutory requirements. The court found that the agreement was made in good faith and that it met the criteria for approval under the Act.

The court granted the application for approval of the Gypsum Resources Australia Workplace Agreement 2013. The agreement was declared to be an enterprise agreement under the Fair Work Act and was approved as such. The court's decision provided clarity on the requirements for approving workplace agreements and reinforced the importance of procedural fairness and compliance with statutory provisions.

Gypsum Resources Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established