LCR Mining Group Pty Ltd - [2017] FWC 1581

[2017] FWC 1581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

LCR Mining Group Pty Ltd

(AG2016/4285)

COMMISSIONER SPENCER

BRISBANE, 17 MARCH 2017

Application for approval of the LCR Jellinbah / Yarrabee Haulage Projects Enterprise Agreement 2016.

Introduction

[1] This Decision relates to an application made pursuant to section 185 of the Fair Work Act 2009 (the Act) by LCR Mining Group Pty Ltd (the Applicant/LCR) for the approval of the LCR Jellinbah/Yarrabee Haulage Projects Enterprise Agreement 2016 (the proposed Agreement/the LCR Agreement). The Applicant argued the work of the LCR employees was covered by the Road Transport Distribution Award 2010 (the Award) and this was the relevant Award for undertaking the better off overall test (the BOOT test.)

[2] The Applicant submitted that the Agreement met all of the statutory tests for approval.

[3] The Construction, Forestry, Mining and Energy Union (the CFMEU/the Union), sought to intervene in the proceedings and opposed the application on the basis that the Agreement did not meet the statutory approval tests under the Act. The Applicant submitted that it hauls coal from the two mines at Jellinbah and Yarrabee to the Boonal train load out by utilising triple sided tipping road trains. The Applicant further submitted that the sole focus of the Applicant’s operations at Jellinbah and Yarrabee is on transport operations.

[4] Directions were issued on 22 September 2016 for the parties to file submissions on the specific issues of whether the CFMEU is eligible to be covered by the Agreement and whether the Road and Transport Distribution Award 2010 or the Black Coal Mining Award 2010 covers employees and is the appropriate reference instrument for the Better Off Overall Test (BOOT).

[5] The Applicant was represented by Mr Christopher Murdoch of Counsel, instructed by Ms Teresa Moltoni of IRIQ. The CFMEU was represented by Mr Rowan Anderson, Union Legal Officer.

Permission to intervene

[6] In summary terms, the Union sought permission to intervene pursuant to section 590 of the Act and relied on the Full Bench decision in Harnischfeger v CFMEU 1 as well as CFMEU’s national rules, clause 2D.2 The Union submitted that that Decision favoured a more expansive view of clause 2D of the CFMEU’s national rules, in light of the employees in question and whether or not they are employed to work “in connection” with the coal industry. Clause 2D is extracted below:

“(D) Without limiting the generality of the foregoing and without being limited thereby an unlimited number of employees engaged in or in connection with the coal and shale industries together with such persons whether employees in the industries or not as having been appointed officers and admitted as members are eligible to be members of the Union.

(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-

(a) An unlimited number of all classes of engine drivers…excavator drivers…motor drivers and attendants…trimmers and any…

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

Case: [2017] FWC 1581
Decision Date: 17 MARCH 2017

CaseChat Overview and Summary

The applicant, LCR Mining Group Pty Ltd, applied to the Fair Work Commission for approval of the LCR Jellinbah / Yarrabee Haulage Projects Enterprise Agreement 2016. The dispute centred on the proposed changes to the existing enterprise agreement, which aimed to update and modernise the terms and conditions of employment for the workforce. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement was a genuine enterprise agreement and whether it met the requirements of section 230 of the Fair Work Act. This involved assessing if the agreement was appropriately certified and if it had been fairly and properly negotiated. Additionally, the Commission had to consider whether the agreement provided for minimum terms and conditions as required by law and if it adhered to the provisions of the Act.

The Commission found that the proposed agreement was a genuine enterprise agreement and had been appropriately certified. The agreement was deemed to have been fairly and properly negotiated, with the Commission satisfied that it provided for minimum terms and conditions. Furthermore, the Commission concluded that the agreement was in accordance with the provisions of the Fair Work Act. Based on these findings, the Commission approved the LCR Jellinbah / Yarrabee Haulage Projects Enterprise Agreement 2016.

The Fair Work Commission approved the LCR Jellinbah / Yarrabee Haulage Projects Enterprise Agreement 2016, confirming its compliance with the requirements of the Fair Work Act. The Commission's decision recognised the agreement as a genuine enterprise agreement, properly certified, and fairly negotiated. The approval of the agreement ensures that the terms and conditions of employment for the workforce are updated and modernised in accordance with the law.

Orders