Iron Mine Services Pty Ltd

[2018] FWCA 4077

[2018] FWCA 4077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Iron Mine Services Pty Ltd
(AG2018/685)

IMS AGREEMENT 2018

Mining industry
COMMISSIONER WILLIAMS	PERTH, 10 JULY 2018

Application for approval of the IMS Agreement 2018.

[1] This Decision concerns an application made by Iron Mine Services Pty Ltd (IMS or the Applicant) on 27 February 2018 under section 185 of the Fair Work Act 2009 (the Act) for the approval of the IMS Agreement 2018 (the Agreement). The Agreement is a single-enterprise agreement.

[2] On 23 March 2018 the Commission provided the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), at their request, with copies of the relevant forms F16-Application for approval of enterprise agreement and F17-Employer’s statutory declaration in support of an application for approval of an enterprise agreement lodged by the Applicant.

[3] On 26 March 2018 the CFMMEU advised it had concerns about the content of the Agreement and the Applicant’s filing of an unsigned copy of the Agreement and wished to have those concerns heard. In that same correspondence the CFMMEU advised the Commission that they were not a bargaining representative in the making of the Agreement however they sought to be heard and proposed filing submissions in support of their request.

[4] On 22 May 2018 the Applicant provided a signed copy of the Agreement.

[5] On 8 June 2018, at the direction of the Commission, the CFMMEU filed written submissions both on the basis for being heard pursuant to section 590 (1) of the Act and on the issues of concern it has regarding the pre-approval steps required by the Act, the content of the Agreement, the Better off Overall Test (BOOT), exclusion of the National Employment Standards (NES) and application filing requirements of the Commission.

[6] Subsequently on that same day, 8 June 2018, this application was allocated to me.

[7] On 26 June 2018 the Applicant filed submissions in response to the CFMMEU’s submissions and a further statutory declaration of Ms Alana Sullivan, HR Officer of the IMS.

[8] It is clear that the CFMMEU was not a bargaining representative involved in the making of this Agreement and does not have any members who are covered by the Agreement.

[9] The CFMMEU recognises that it does not have a right to be heard regarding this application.

[10] What the CFMMEU is seeking is that the Commission exercise the discretion it has under section 590 of the Act to allow it to be heard.

Section 590

[11] The relevant provision of the Act in this instance is section 590 set out below.

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

[12] In this case the majority of concerns raised by the CFMMEU are whether the Agreement passes the BOOT (sections 186 (2)(d) and 193) and satisfies section 186 (2)(c) regarding the NES. Other concerns relate to the requirements of section 180 (5) and section 186 (2)(a).

[13] The benefit of a union acting as a contradictor will depend on the particular circumstances of the case and will involve in each case a judgement by the Commission. The absence of a contradictor would be the most common situation the Commission deals with in agreement approval applications and is no way abnormal or in any way inconsistent with the scheme of the Act. This absence of a contradictor of itself is not sufficient reason for the Commission to exercise its discretion and allow a union, that was a stranger to the bargaining process, to be heard over the objections of one or more of the parties to the Agreement.

[14] Considering the particular circumstances of this case there is no compelling reason why the Commission should exercise its discretion under section 590 of the Act in favour of allowing the CFMMEU to be heard in this matter. Consequently the CFMMEU will not be heard further in regard to this application to approve the Agreement.

The application to approve the Agreement

[15] This application has been made for approval of an enterprise agreement known as the IMS Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Act. It has been made by IMS. The Agreement is a single-enterprise agreement.

[16] The copy of the Agreement filed with the application was unsigned however as noted at [4] the Applicant has subsequently filed a signed copy of the Agreement. Pursuant to s.586 of the Act I consider it appropriate to exercise the Commission’s discretionary power in these circumstances and allow the signed copy of the Agreement filed by IMS on 22 May 2018 to replace the original unsigned copy of the Agreement filed with the application.

[17] In response to concerns from the Commission that the Agreement does not meet the s.186 and s.187 requirements the Applicant has provided written undertakings that meet those concerns. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The Applicant advises that there were no employee bargaining representatives.

[18] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration and the subsequent statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[19] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 July 2018. The nominal expiry date of the Agreement is 10 July 2022.

COMMISSIONER

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ANNEXURE A