DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ipsum Mining Pty Ltd
(AG2021/4674)

IPSUM MINING PTY LTD ENTERPRISE AGREEMENT 2021

Coal industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 24 JUNE 2021

Application for approval of an enterprise agreement – explanation of terms of the enterprise agreement and their effect – BOOT – enterprise agreement approved.

Introduction and background

[1] On 13 April 2021, Ipsum Mining Pty Ltd (Ipsum), a small labour hire provider to the black coal mining industry, applied for approval of the Ipsum Mining Pty Ltd Enterprise Agreement 2021 (Enterprise Agreement), which covers employees of Ipsum, employed in New South Wales, who are covered by the classifications in Schedule A of the Black Coal Mining Industry Award 2010 (BC Award) and who work in the classification of Inexperienced Mineworker, Mineworker, Inexperienced Tradesperson, or Tradesperson. 1

[2] The CFMMEU accepts that it is not, and was not at any time, a bargaining representative for the Enterprise Agreement. I exercised my discretion under s 590 of the Fair Work Act 2009 (Cth) (Act) to permit the CFMMEU to be heard in relation to Ipsum’s application for approval of the Agreement.

[3] The CFMMEU filed and served submissions dated 10 May 2021 (amended), 18 May 2021, and 2 June 2021, together with a witness statement of Robert Timbs, District Vice President of the CFMMEU, dated 10 May 2021. In addition to its Form F16, Form F17 and other material filed with its application for approval of the Enterprise Agreement, Ipsum filed and served submissions dated 12 May 2021, 25 May 2021 and 8 June 2021, together with witness statements made by Dylan Robertson, Managing Director of Ipsum, on 12 May 2021 and 25 May 2021, and undertakings dated 8 June 2021 (Undertakings). I have read and had regard to all of that material. Neither the CFMMEU nor Ipsum took up the opportunity offered to them to have a hearing in relation to the application for approval of the Enterprise Agreement. Accordingly, I have determined the application on the basis of the material filed by Ipsum and the CFMMEU.

Undertakings

[4] Mr Robertson has provided the following Undertakings to address a number of concerns raised by the Commission and the CFMMEU (Undertakings):

“1. I have the authority given to me by Ipsum Mining Pty Ltd to provide this undertaking in relation to the application before the Fair Work Commission.

2. If, despite clause 18.6 of the Agreement, an Employee is required to work afternoon or night shiftwork for a period fewer than three consecutive working days, overtime rates will be paid for any afternoon or night shiftwork (except where the requirement is caused by the failure of any other Employee to come on duty at the proper time).

3. Clause 9.1 of the Agreement will be applied so that ordinary hours are averaged evenly between shifts for the duration of the roster cycle.

4. For the purpose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ipsum Mining Pty Ltd [2021] FWCA 3672
Case: [2021] FWCA 3672
Decision Date: 24 JUNE 2021

CaseChat Overview and Summary

Ipsum Mining Pty Ltd was before the Fair Work Commission, where the applicant sought approval for an enterprise agreement. The applicant, a mining company, aimed to have the proposed agreement recognised under the Fair Work Act 2009. The dispute centred on the terms of the agreement, particularly those relating to the benefits and obligations of the employees and the company. The Commission was tasked with determining whether the agreement complied with the statutory requirements and whether it was in the best interests of the employees.

The legal issues before the Commission included whether the agreement provided fair and reasonable terms and conditions of employment and whether it adhered to the Better Off Overall Test (BOOT). Additionally, the Commission had to consider if the agreement contained any terms that might be detrimental to the employees or the company. The applicant argued that the agreement was fair and in the best interests of the employees, while the respondent, presumably the employees or their representative, contended that certain provisions were unfair.

The Commission found that the agreement met the requirements of the Act and passed the BOOT. It was determined that the agreement provided for fair and reasonable terms and conditions, including provisions for wages, hours of work, leave entitlements, and other employment conditions. The Commission concluded that the agreement was not detrimental to the employees and was in their best interests, thus approving the enterprise agreement.

The Fair Work Commission approved the enterprise agreement proposed by Ipsum Mining Pty Ltd. The agreement was deemed to be fair and reasonable, providing for the terms and conditions of employment that were better off overall for the employees. The Commission's decision was based on its assessment that the agreement met the statutory requirements and was in the best interests of the employees.

Orders