Jetcrete Oz Pty Ltd

[2020] FWCA 2559

[2020] FWCA 2559

FAIR WORK COMMISSION

DECISION

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

Jetcrete Oz Pty Ltd
(AG2019/4392)

JETCRETE OZ ENTERPRISE AGREEMENT 2019

Mining industry
COMMISSIONER WILLIAMS	PERTH, 18 MAY 2020

Application for approval of the Jetcrete Oz Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Jetcrete Oz Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Jetcrete Oz Pty Ltd (the Applicant). The Agreement is a single-enterprise agreement.

Background

[2] The Agreement covers all mine workers employed at the Applicant’s mine site operations in all states, but not territories of Australia. The Applicant stated the modern award that covered them, and their employees was the Mining Industry Award 2010 [MA000011] (the Mining Award).

[3] The Agreement was made in November 2019, by a vote of 214 employees in favour of approving the Agreement out of the 239 whom cast a valid vote. The Agreement at that time covered 271 employees.

[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in December 2019, filed Form F18 - Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) stating it was a bargaining representative by virtue of s.176 of the Act. The CFMMEU advised it did not support the approval of the Agreement on the grounds that the Fair Work Commission (the Commission) could not be satisfied it passed the better off overall test (BOOT), as it applied to employees covered by both the Mining Award and the Black Coal Mining Industry Award 2010 [MA000001] (the Black Coal Award). The CFMMEU also raised concerns about the National Employment Standards (the NES) regarding annual and personal leave and public holidays and that the Agreement was not explained in a manner required by s.180(5) of the Act.

[5] The CFMMEU sought to be heard regarding the application. The Applicant objected to this submitting that the CFMMEU was not a bargaining representative and so had no standing to be heard.

[6] In February 2020 the Applicant, following an enquiry from the Commission, advised that it had no intention for the Agreement to cover employees who would otherwise be covered by the Black Coal Award and was willing to make an undertaking to limit the scope of the Agreement, to confirm it did not apply to employees who would otherwise have been covered by the Black Coal Award.

[7] On 28 February 2020, the CFMMEU advised that such an undertaking would not resolve all the CFMMEU’s concerns.

[8] Consequently, the Commission listed a hearing for 22 April 2020 and issued directions for the parties to provide material dealing with whether the CFMMEU should be heard and also with the concerns the CFMMEU had with Commission approving the Agreement.

[9] Subsequently, the question of the CFMMEU being heard was resolved by a process agreed and proposed by the parties whereby they provided the Commission, on a confidential basis, a list of the relevant employees and a list of the relevant union members. This removed the necessity to deal with this question at the listed hearing. The Commission having reviewed both lists advised the parties on 9 April 2020, that it had determined that the CFMMEU was a bargaining representative for the proposed Agreement pursuant to s.176(1)(b) of the Act. Consequently, the CFMMEU was entitled to be heard regarding the application.

[10] The hearing proceeded as listed however was conducted by telephone due to concerns regarding COVID–19.

[11] Following the hearing on 22 April 2020, two revisions of the proffered undertakings and a statutory declaration from the Applicant were provided to the Commission and the CFMMEU by the Applicant and the CFMMEU provided further written submissions.

Consideration

[12] The CFMMEU has raised concerns that the Agreement is contrary to the NES, in particular regarding parental and annual leave and public holidays. It has concerns about abandonment of employment provisions and maximum weekly hours. The CFMMEU does not accept a general NES precedence clause is acceptable to resolve these issues.

[13] The CFMMEU also has concerns that failure to comply with a company policy or code will be a breach of the Agreement. The CFMMEU has concerns about ordinary hours and rosters, meal breaks, wages and classifications, public holiday work, being unfit for work and not being paid and some mandatory medical test requirements.

[14] The CFMMEU also points to some beneficial Mining Award provisions that are not in the Agreement.

[15] The Applicant contests many of the concerns the CFMMEU has raised however, it has also recognised the validity of some issues and has now proffered additional undertakings to resolve these. The CFMMEU has suggested some alterations to some undertakings and again some of these suggestions have been taken on board by the Applicant and reflected in revised undertakings.

[16] The minimum hourly rates in the Agreement are between 24% and 65% greater than equivalent Mining Award minimum rates.

[17] The Agreement provides that all penalties, loadings, responsibilities, disadvantages, allowances and other additional payments are compensated for by these higher minimum hourly rates and the Agreement requires the company to ensure employees are paid total remuneration more than they would receive under the Mining Award for the same work.

[18] The issue of terms of an agreement being at odds with the NES is a common problem. The Commission’s Enterprise agreements benchbook which has been prepared and made publicly available to assist parties bargaining, making and lodging enterprise agreements deals with this issue as follows 1:

“NES precedence term

The increasing proportion of enterprise agreements requiring undertakings to address deficiencies is impacting on the time it is taking the Commission to finalise applications for approval of agreements. Many of these undertakings are requested when an agreement provides entitlements that are inconsistent with, or less beneficial than the National Employment Standards (NES). In order to reduce the incidence of Members requesting undertakings, it may assist if a term is included in an enterprise agreement when it is made providing that where there is any inconsistency, more generous entitlements under the NES will prevail over provisions in an agreement. An example of an NES precedence term that could be included in an agreement is set out below:

This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”

[19] The Agreement contains exactly this recommended precedence term at clause 8.3.

[20] With respect to the NES, I am consequently satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I am satisfied that the terms of the Agreement do not contravene s.55 of the Act.

[21] The Commission notes the undertakings address the following concerns. That the scope of the Agreement not extend to work covered by the Black Coal Award, the rate of payment of annual leave, employees reasonably refusing to work public holidays, employees right to refuse to work unreasonable additional hours, abandonment of employment, breaches of company rules, policies and procedures not being a contravention of the Agreement, applying the Mining Award’s redundancy provisions, maximum average weekly hours and only working 5/2 rosters on weekdays, non-payment of unfit for work confirmed by testing, applying the Mining Award’s payment on termination provisions and timing of meal breaks.

[22] The Commission notes the CFMMEU continues to oppose the approval of the Agreement whilst accepting some of its concerns have now been dealt with.

[23] A copy of the undertakings is attached in Annexure A to this decision. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[24] Recognising that the BOOT is a global test not a line by line comparison with the Mining Award, subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[25] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 May 2020. The nominal expiry date of the Agreement is 17 May 2024.

Appearances:

P. Robertson of the Australian Mines and Metals Association for the Applicant.

A. Kentish on behalf of the CFMMEU.

Hearing details:

Perth.

2020:

April 22.

Annexure A

 1   Enterprise agreements benchbook: Optional Terms, NES precedence term at page 57 (PDF version).

Printed by authority of the Commonwealth Government Printer

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