Hastings Deering (Australia) Ltd T/A Hastings Deering

[2016] FWC 3679

[2016] FWC 3679

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hastings Deering (Australia) Ltd T/A Hastings Deering
(AG2016/628)

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 10 JUNE 2016

Application for approval of the Hastings Deering (Australia) Limited Enterprise Agreement 2016.

[1] On 18 March 2016, Hastings Deering (Australia) Ltd T/A Hastings Deering (Hastings Deering) applied for approval of an enterprise agreement known as the Hastings Deering (Australia) Limited Enterprise Agreement 2016 (the Agreement). I approved the Agreement in a separate decision [[2016] FWCA 3661].

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) gave notice under s.183 of the Fair Work Act 2009 (the Act) and I note that the organisations are covered by the Agreement in accordance with s.201(2) of the Act.

[3] On 4 April 2016 the CFMEU filed a Form F18 – Statutory Declaration and an overview of its objections in relation to the application.

[4] The Agreement was originally allocated to the Fair Work Commission (the Commission) Member Support Team (MST) as part of the agreement triage process.

CFMEU’s objections

[5] The CFMEU’s objection to approval of the Agreement was made clear in a letter dated 4 April 2016 to the Commission. In summary, the objections are as follows:

(a) That by the operation of clauses 1.4(f), 5.5, 13.4, 16.1 and Appendix 1 of the Agreement, it would apply to employees who are “Coal mining employees” as that term is defined in clause 4.1 of the Black Coal Mining Industry Award 2010 (Black Coal Award). In addition, because of the interaction of the Black Coal Award and the Coal Mining Industry (Long Service Leave) Administration Act 1922 (Coal LSL Administration Act), the same employees would also be “eligible employees” as defined in section 4 of the Coal LSL Administration Act;

(b) The consequence of employees covered by the Agreement falling into the definitions of the “Coal mining employees” under the Black Coal Award and “eligible employees” under the Coal LSL Administration Act, is that the entirety of the coal mining industry long service scheme would apply to the relevant employees and the employer;

(c) That the purported operation of the Agreement in respect to long service leave may lead to the employer contravening Commonwealth law to which pecuniary penalties apply; or alternatively, may result in the commission of an offence against a Commonwealth law to which criminal sanctions apply;

(d) The Agreement provides for a long service leave entitlement to eligible employees that is significantly less beneficial than that provided in relevant Commonwealth legislation;

(e) That the Commission must give consideration to whether the Agreement contravenes s.192 of the Act.

[6] Section 192 of the Act relevantly provides as follows:

“192 When the FWC may refuse to approve an enterprise agreement

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC may refuse to approve the agreement if the FWC considers that compliance with the terms of the agreement may result in:

(a) a person committing an offence against a law of the Commonwealth; or
(b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

(2) Subsection (1) has effect despite sections 186 and 189 (which deal with the approval of enterprise agreements).

(3) If the FWC refuses to approve an enterprise agreement under this section, the FWC may refer the agreement to any person or body the FWC considers appropriate.”

[7] On 7 April 2016, the MST corresponded with Hastings Deering. With regard to the CFMEU’s objections pertaining to the application of s.192 of the Act, the following question was put:

“Do you agree with the objections raised by the CFMEU in respect to the operation of section 192 of the Fair Work Act 2009? To the extent that there is any agreement, are you willing to provide an undertaking to rectify this issue?”

Hastings Deering’s submissions

[8] On 13 April 2016, Hastings Deering corresponded with the MST in response to the objections made by the CFMEU. The correspondence is summarised as follows:

(a) Section 192 of the Act provides the Commission with discretion to refuse to approve an enterprise agreement if the Commission considers that compliance with the terms of the agreement may result in a person committing an offence against a law of the Commonwealth, or being liable to pay pecuniary penalties in relation to a contravention of a law of the Commonwealth;

(b) Hastings Deering does not agree with the matters raised by the CFMEU in their letter dated 4 April, in particular that compliance with the proposed Agreement would give rise to a contravention or liability for a pecuniary penalty under Commonwealth legislation;

(c) Even if the long service leave provisions of the Agreement did give rise to such a contravention liability, that it is not appropriate for the Commission to exercise its discretion to refuse to approve the Agreement on the following basis:

(i) Hastings Deering is required to comply with all Commonwealth laws, regardless of the provisions of any applicable enterprise agreement;

(ii) There is no question as to whether the entitlements set out in the Agreement in respect of long service leave meet the minimum requirements of the National Employment Standards.

[9] Hastings Deering rejected the CFMEU’s assertion that relevant employees are covered by the Black Coal Award and the Coal LSL Administration Act. Hastings Deering submitted that the issues raised by the CFMEU in its correspondence should more appropriately be dealt with through enforcement under the Coal LSL Administration Act if relevant employees were found to be eligible employees. Hastings Deering contended that the issues raised by the CFMEU should not be dealt with relevant to an application for the approval of an enterprise agreement.

[10] It was submitted by Hastings Deering that if the Commission dealt with the issues that were in disagreement between Hastings Deering and the CFMEU, it would be unlikely to resolve the [contentious] issue, and may result in multiplicity of proceedings, with the CFMEU seeking enforcement of the Coal LSL Administration Act in a relevant court.

[11] Hastings Deering submitted that if the Commission was not satisfied with the information available to approve the Agreement, it was prepared to provide an undertaking. A proposed undertaking was included in the correspondence. The proposed undertaking is to the effect that [Hastings Deering] undertakes that in complying with the provisions of the Agreement, it will comply with any applicable laws of the Commonwealth.

[12] The communication from Hastings Deering stated that the views of the AMWU had been sought; with the AMWU stating they neither support nor object to the undertaking proposed by Hastings Deering.

Matter allocated to my Chambers

[13] The Agreement was allocated to my Chambers. On my instruction, my Associate wrote to the parties on 26 April 2016 to inform the parties that subject to the issue of the long service leave entitlements being resolved, I was inclined to approve the Agreement. My Associate informed the parties that I did not consider the proposed undertaking of Hastings Deering to be satisfactory, and requested the parties reach a consent position on an undertaking to be given by Hastings Deering with respect to the long service leave issue.

[14] The parties were informed that if they could not reach a consent position with respect to the words contained within an undertaking, the matter would be listed before me. I asked the parties to consider additional terms within the undertaking to the following effect:

“If an employee bound by the Agreement is entitled to long service leave in accordance with the Coal Mining Industry (Long Service Leave) Administration Act 1992, and that entitlement is greater than [that] provided for in this Agreement, that entitlement will be met.”

CFMEU: An undertaking cannot remedy s.192 concerns

[15] It is apparent that there was email communication between Hastings Deering and the CFMEU on 27 April 2016. On 29 April 2016, the CFMEU replied to Hastings Deering.

[16] The CFMEU’s communication to Hastings Deering is that the CFMEU is of the view that an undertaking made pursuant to s.190 of the Act cannot address a matter relevant to s.192. It is the CFMEU’s contention that s.192 is suggestive of a Parliamentary intention that the section provide a separate head of power for the Commission to refuse to approve an enterprise agreement.

[17] Section 190 is reproduced below:

“190 FWC may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made under section 185; and

(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.

Undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

FWC must seek views of bargaining representatives

(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.

Signature requirements

(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.”

[18] The letter from the CFMEU to Hastings Deering said that it was open to the Commission to make further inquiries as to whether the Agreement meets the requirements of s.192, and suggested that it was appropriate for the Agreement to be referred to the Coal Mining Industry (Long Service Leave Funding) Corporation (the LSL Corporation) to obtain an independent opinion as to whether the long service leave arrangements in the Agreement would offend relevant Commonwealth legislation.

[19] In the alternative, the CFMEU suggested that if it was incorrect with respect to undertakings being able to be provided to overcome concerns with respect to s.192, an alternative proposed undertaking was attached to the letter sent to Hastings Deering.

[20] The undertaking proposed by the CFMEU to Hastings Deering provided:

(a) In complying with the Agreement, Hastings Deering will comply with the relevant LSL acts in respect of eligible employees;

(b) The company commits to register as an employer of eligible employees with the LSL Corporation and remain registered as long as it employs eligible employees;

(c) The company commits to ensuring that all employees who are entitled to receive the “Coal Mine Rate” within the Agreement will be treated as eligible employees and will be recorded with the Corporation; and

(d) The company will provide to the Corporation (and periodically maintain) all records of service of eligible employees in the coal mining industry held by the company.

Hastings Deering communication to the Commission

[21] On 3 May 2016, Hastings Deering communicated with my Chambers in writing and advised that the parties had not been able to reach a consent position with respect to an undertaking. A relevant paragraph within the letter states:

“We do not consider that the discretionary power in s192 of the Fair Work Act 2009 (Cth) (FW Act) is enlivened in these circumstances. The proposed Agreement does not conflict with any Commonwealth law. Even if it did, Hastings Deering is required to comply with all applicable Commonwealth laws, regardless of the provisions of any applicable enterprise agreement.”

[22] Hastings Deering contended that the Commission has previously approved multiple enterprise agreements in the coal mining industry that do not specifically refer to the Coal LSL Administration Act, and referenced a decision to approve an agreement with the giving of an undertaking where questions in respect of s.192 were raised.

[23] Hastings Deering provided for consideration a signed undertaking in identical terms to the words suggested by me in paragraph [14].

Listed for conference

[24] The parties had not reached a consent position, and accordingly, I listed the application for conference on 11 May 2016. I asked that the parties come prepared to address the following issues at the conference:

A. Does the Black Coal Mining Industry Award 2010 apply to the work to be performed by employees covered by the Agreement?

B. If the Black Coal Award does not apply to the work to be performed by the employees covered by the Agreement, does the Coal Mining Industry (Long Service Leave) Administration Act 1991 apply?

C. If the Black Coal Award does apply, it would be necessary for the BOOT to be determined against the Black Coal Award as well as the other modern awards nominated in 3.1 of the Form F17 filed with the application for approval of the Agreement.

Correspondence from the LSL Corporation

[25] On 6 May 2016, the LSL Corporation sent correspondence to my Chambers. The letter stated that the LSL Corporation had become aware of the application to approve the Agreement, and a copy of the Agreement had been obtained from the Commission’s website.

[26] The LSL Corporation enclosed a copy of the Guidance Note on Coverage of the Coal Mining Industry Long Service Leave Scheme, and offered to make one of the Corporation’s officers available to the Commission to assist in the understanding of the Coal LSL Administration Act.

Conference of 11 May 2016

[27] Hastings Deering, together with the CFMEU and the AMWU attended a conference before me on 11 May 2016.

[28] The issue as to whether an undertaking pursuant to s.190 of the Act was discussed, among many of the contentions put by the CFMEU. Agreement could not be reached between the parties, including any form of an undertaking acceptable to the parties.

[29] I informed the parties that I held a preliminary view that the CFMEU is correct with respect to an undertaking pursuant to s.190; an undertaking is not available to overcome a concern the Commission may have with respect to s.192. I indicated that I held this preliminary view due to s.190(1)(b) specifying that an undertaking may be given if the Commission has a concern that an agreement does not meet the requirements set out in sections 186 and 187. Sections 186 and 187 do not traverse the matters covered in s.192.

[30] At conference, I inquired of Hastings Deering if it might be prepared to write to relevant employees to inform them, inter alia, that it did not agree with the CFMEU’s contention that they are covered by the Black Coal Award, however, in the event Hastings Deering is incorrect on this issue, the company will comply with the provisions of the Coal LSL Administration Act. The company committed to inform the Commission of its position following the conference.

[31] The CFMEU agreed that if it was found that the Black Coal Award does apply, the Agreement would pass the BOOT “largely due to its relatively high hourly rates of pay, when the “Coal Mine Rate” is factored in.”

[32] On 13 May 2016, Hastings Deering communicated with my Chambers to advise that it was prepared to provide to relevant employees a letter largely in the form suggested by me at paragraph [30]. A copy of the proposed letter was provided.

Preliminary View communicated to the parties

[33] On 18 May 2016, my Associate communicated to the parties the following:

“It is the Commissioner’s preliminary view that upon the applicant issuing the letter to relevant employees (in the form proposed); a decision to approve the agreement would follow.

The Commissioner’s preliminary view is detailed below:

1. Section 192(1) of the Fair Work Act 2009 allows for the discretion of the FWC to approve an agreement even if compliance with the terms of the agreement may result in a person committing an offence against a law of the Commonwealth;

2. On the information before her, the Commissioner is not satisfied that clause 16 of the Agreement would or may result in Hastings Deering committing an offence against the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the Act);

3. There is futility in hearing evidence of the parties to determine if the Black Coal Mining Industry Award 2010 (Black Coal Award) has application to a number of employees permanently performing work at a coal mine operation. The CFMEU confirms that the Agreement would pass the BOOT when tested against the Black Coal Award;

4. Even if the Black Coal Award applies to a number of relevant employees (working permanently on a coal mine site pursuant to clause 16.1(a)(iii) of the Agreement), the Agreement entitles those employees to long service leave a the rate of 13 weeks per 8 years of continuous service with the Company. Hastings Deering will, by issue of the above letter, inform relevant employees that it is the company’s position that it does not agree the Act applies, however in the event the Act does apply, it will comply with the provisions of the Act.

5. Clause 16 of the Agreement contains words that are not too dissimilar (but not identical) to the wording in the Hastings Deering (Australia) Ltd Enterprise Agreement 2011. It is noted that the main differences between these two clauses is:

(a) the reference to Black Coal Industry/works on a coal mine site; and
(b) no reference to continuous service with the company / service with the company.

6. If relevant employees have been working in the Black Coal Industry pursuant to the 2011 agreement, and it had been determined (or by practice) they have been eligible employees under the Act, the approval of the 2016 Agreement will not alter any position in respect of those employees.

7. There are a number of ‘deficiencies’ identified by the CFMEU in the letter dated 4 April 2016 with regard to the LSL clause within the Agreement and the provisions of the Act. It is submitted by the CFMEU that the LSL clause is “seriously deficient in respect to the entitlements an eligible employee would receive under the …..Act”. Even if employees working permanently at a coal mining site are determined to be eligible employees for the purposes of the Act, it is not necessary for consideration of the approval of the Agreement to ensure that all relevant sections of the Act are reproduced in the Agreement.

8. It is more appropriate for a court of competent jurisdiction to determine if Hastings Deering has an obligation under the Act to make payable the payroll levy, together with monthly returns referred to in the letter of the CFMEU to the Commission dated 4 April 2016. Even if the Fair Work Commission determined that relevant employees are coal mining employees for the purposes of the Black Coal Award and the Act, it would not necessarily follow that Hastings Deering would make payments relevant to the payroll levy. While a decision of the Fair Work Commission finding this way may carry some weight, there would be no compulsion on the employer to make the payments until such time as a Commonwealth court made such a finding.”

[34] The views of the CFMEU were then sought in relation to the preliminary views as set out above.

CFMEU’s submissions and witness statement

[35] On 20 May 2016, the CFMEU filed submissions in response to the matters put by me in the communication of 18 May 2016. In addition, a witness statement of Mr Steven Pierce, District Vice President of the Queensland Branch of the CFMEU Mining & Energy Division was filed.

[36] A summary of the CFMEU’s submission is detailed below.

(a) s.192 discretion

(i) Section 192 involves the exercise of a discretion by the decision maker, but it would be wrong to construe the nature of such discretion as being at large. In exercising its discretion under s.192, the Commission would have regard to the general objects and specific objects of the Act.

(ii) The coal mining industry LSL scheme occupies an equivalent position to the National Employment Standards as part of the safety net of minimum terms and conditions of employment for employees in the black coal mining industry. The Commission should have regard to the scheme forming part of the safety net provisions applicable to employees in the black coal mining industry.

(b) Insufficient evidence of an “offence” against the LSL Act

(i) The consideration in s.192 is not whether there is an actual offence of Commonwealth laws, only whether the approval of the agreement may result in a relevant contravention. The purpose of the section is to enable the Commission to pre-empt an offence, rather than react to a past event.

(ii) The section doesn’t apply to offences alone, but includes the broader category of pecuniary penalty breaches.

(iii) The Commission is empowered pursuant to s.590 to require information from Hastings Deering relevant to the work location, duties etc. of employees. The witness statement of Mr Steven Pierce provides a sufficient factual basis for the Commission to decline to approve the Agreement on the basis that compliance with its terms may lead to an offence or a pecuniary penalty breach of Commonwealth law.

(iv) The evidence of Mr Pierce is that Hastings Deering employs workers who are clearly within the scope of the Black Coal Award, and therefore the LSL scheme.

(c) Futility in hearing evidence regarding whether the Black Coal Mining Industry Award 2010 applies as the Agreement passes the BOOT

(i) The Agreement would pass the BOOT, however if the Commission obtains information that would assist in identifying the correct safety net applicable to employees covered by the Agreement, the Commission will be better placed to properly assess whether there is any risk of the Agreement leading to a breach of s.192.

(d) The Agreement already provides for 13 weeks leave after 8 years’ service and the Company will issue a letter

(i) If Hastings Deering applied the Agreement by application of the LSL clause within the agreement, whether with the letter provided by the company or without it, it would result ina direct breach of the coal mining industry scheme.

(ii) The proposed letter is worthless as a guarantee of employee entitlements. It does no more than observe that Hastings Deering will comply with the law at some point in the future.

(e) Relevance of the previous agreement

(i) The 2011 agreement appears to align the entitlement to 13 weeks leave after 8 years’ service in the industry. This is contrasted to the service with the company appearing in the Agreement to be approved.

(ii) The reference in the 2011 agreement to backdating to 1 January 2010 appears to be because of the application of the Act on a common rule basis, whereas previously employers were named respondents to the scheme. Therefore the 2011 agreement appears to accept that the coal mining industry long service leave scheme is applicable to employees under that [2011] agreement.

(f) It is not necessary for all relevant sections of the Act to be included in the Agreement in order for it to be approved

(i) This is agreed. However the long service leave clause within the Agreement will not recognise industry service as required by the LSL Act. If Hastings Deering is insisting that the scheme does not apply, [and if it does], the company is in breach of a raft of provisions including payment of a payroll levy and the obligation to provide regular reports.

(g) It is more appropriate for a court of competent jurisdiction to make a decision as to payment of the payroll levy etc.

(i) The CFMEU is not seeking that the Commission enforce the terms of the LSL Act. The Commission should not approve the Agreement as an exercise of discretion having regard to the important safety net role of the LSL scheme.

Question as to whether a hearing is required

[37] On 31 May 2016, my Associate wrote to the parties and requested the CFMEU advise if it wished for a hearing to be convened. Hastings Deering was directed to advise my Chambers in the event a hearing was requested, if it wished to cross-examine Mr Pierce. The parties were informed that if the CFMEU did not wish for a hearing to be convened, I proposed to deal with the application on the papers.

[38] On 1 June 2016, the CFMEU wrote to my Associate to advise that it relied upon the submissions that had been already been filed, together with Mr Pierce’s evidence. A hearing was not required unless Hastings Deering wished to contest the veracity of Mr Pierce’s evidence.

[39] Hastings Deering did not contact my Chambers to advise that it wished to challenge Mr Pierce’s evidence.

Approval of the Agreement

[40] On 6 June 2016 I approved the Agreement and issued a decision. I provide my reasons below.

Clause 16, Long Service Leave

[41] Clause 16 of the Agreement is reproduced below:

16 Long Service Leave

(a) An Employee will be entitled to long service leave in accordance with the relevant state or territory legislation, as amended from time to time.

(b) Where this Agreement provides for a more beneficial term above the relevant legislation, the term in this Agreement will apply.

16.1 Entitlement

(a) A full time Employee will accrue long service leave in accordance with the following:

(i) An Employee permanently working in Queensland, other than an Employee who works permanently on a coal mine site/s, will accrue long service leave at the rate of 10 weeks per 10 years of continuous service with the Company; or

(ii) An Employee permanently working in the Northern Territory, other than an Employee who works permanently on a coal mine site/s, will accrue long service leave at the rate of 13 weeks per 10 years of continuous service with the Company; or

(iii) An Employee who permanently works on a coal mine site shall be entitled to accrue long service leave at the rate of 13 weeks per 8 years of continuous service with the Company.

(b) A casual Employee will be entitled to long service leave in accordance with the relevant state or territory legislation.

16.2 Taking Long Service Leave

(a) Long service leave may be taken in periods of not less than one week or a full Continuous Roster panel.
(b) The Company will approve the taking of long service leave provided that:

(i) the Employee provides at least four weeks’ notice of their intention to take leave;
(ii) the leave is for a period that complies with clause 16.2(a); and
(iii) (iii) the leave will not have a considerable impact on business operations.

(c) An Employee who has an entitlement to long service leave must make arrangements to take leave within five years of each entitlement falling due. The Company may otherwise direct an Employee to take leave within five years of the leave falling due. At any time, an Employee shall be entitled to maintain a minimum of four weeks’ long service leave entitlement.

16.3 Payment

(a) Payment for long service leave shall be at the Ordinary Hourly Rate.
(b) Where an Employee is paid an Annualised Salary, they will continue to receive their Annualised Salary during the leave period.
(c) Payment for long service leave will be made in the usual fortnightly pay cycle.

16.4 Payment on Termination

(a) Subject to 16.4(b), payment of long service leave on termination will be in accordance with the relevant state or territory legislation and in accordance with clause 16.3. For clarity, those employees on Annualised Salary will be paid at their Annualised Salary rate.
(b) Pro rata long service leave will be paid on termination after 5 years continuous service, except for Employees permanently working on a coal mine site as at the date of termination, whose pro rata long service leave accrual will be paid on termination after 6 years continuous service.

Consideration

[42] It is asserted by the CFMEU that some of the employees covered by the Agreement are employees for whom the Black Coal Award applies. Not all employees covered by the Agreement are allegedly covered by this Award and therefore relevant state or territory laws govern the terms and conditions of these other employees’ long service leave entitlements.

[43] The position of Hastings Deering is that there are no employees employed pursuant to the Black Coal Award. Accordingly, relevant state and territory laws govern the long service leave entitlements of all employees covered by the Agreement.

[44] As a Full Bench of the Commission observed in Ai Group v ADJ Contracting Pty Ltd 1, even if the Commission is satisfied that compliance with a clause in an enterprise agreement may lead to a person committing an offence against a Commonwealth law or being liable to pay a penalty with respect to such a contravention, it does not follow that the Commission must refuse to approve that agreement. 

[45] If I accept the CFMEU’s submission that some employees are covered by the Black Coal Award, and therefore the Coal LSL Administration Act, and accept the evidence of Mr Pierce to support it, it does not follow that I must refuse to approve the Agreement pursuant to s.192 of the Act. In my view, compliance with the Agreement will not result in a contravention of the Coal LSL Administration Act. 

[46] Clause 16 of the Agreement deals with the entitlement of employees to long service leave where the entitlement arises from a relevant law of a State or Territory [my emphasis]. The terms of clause 16 dealing with accruals and service are intended to provide a benefit where the provisions or a State or Territory law dealing with long service leave provide for a lesser benefit.  That is, where employees work permanently on a coal mine site, they will attract long service leave entitlements greater than provided for in the relevant state or territory legislation.

[47] There is no inconsistency between clause 16 of the Agreement and the Coal LSL Administration Act.  The former provision applies to employees who are entitled to long service leave under a law of a State or Territory.  The Coal LSL Administration Act is a law of the Commonwealth.   If employees to whom the Agreement applies are entitled to long service leave under the terms of the Coal LSL Administration Act, then clause 16 of the Agreement has no effect on either the employees or the employer.  Hastings Deering cannot “comply” with a clause that has no effect, and any breach of the Coal LSL Administration Act will constitute a breach because of failure to comply with that Act and not because of compliance with a term of the Agreement.

[48] In the event that it is demonstrated that relevant employees are covered by the terms of the Black Coal Award and therefore the Coal LSL Administration Act, Hastings Deering’s obligation will be to apply the terms of the Coal LSL Administration Act which include payment of payroll levies and reporting to the LSL Corporation. Hastings Deering’s breaches of the Commonwealth Acts will not have been because of compliance with clause 16 of the Agreement.

[49] It is evident that Hastings Deering is aware of an obligation to comply with Commonwealth law (if it applies), contained in correspondence to the Commission in paragraph [21] above.

Section 192 discretion

[50] While I am satisfied that clause 16 of the Agreement is intended to cover the application of state and territory (and not Commonwealth) entitlements to long service leave, if I am incorrect with respect to this finding, I use the discretion afforded within s.192 to approve the Agreement.

[51] The discretion within s.192 is clear; there is no requirement that I must not approve the Agreement if I consider that compliance with the terms of clause 16 of the Agreement may result in a person committing an offence against a law of the Commonwealth, or being labile to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

[52] I do not consider that such a contested issue as to whether relevant employees are covered by the Black Coal Award, and therefore the Coal LSL Administration Act should be determined in the consideration of the approval of an enterprise agreement arising relevant to s.192 of the Act. It would, of course, be necessary to make such a determination if the relevant award for the purposes of the BOOT was contested. In these circumstances it is not.

[53] Even if the submissions of the CFMEU and the evidence of Mr Pierce is accepted, I decline to refuse to approve the Agreement.

LSL Corporation

[54] I thank the LSL Corporation for its contribution in this matter, however I do not consider it necessary for the Commission to determine whether the Black Coal Award applies to relevant employees for the purposes of approval of the Agreement. This is correct only in the instance where it is agreed, [and I do find in this instance] that if the Black Coal Award did apply to employees covered by the Agreement, the BOOT is satisfied with respect to the Black Coal Award.

Contentions should be pursued in a court of competent jurisdiction

[55] If the CFMEU’s submissions and evidence in relation to relevant employees being covered by the Black Coal Award and the Coal LSL Administration Act is correct, the CFMEU should pursue compliance with the Coal LSL Administration Act in a court of competent jurisdiction.

COMMISSIONER

 1   [2011] FWAFB 6684 at [46]

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