DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Link Mining Services Pty Ltd
(AG2016/6275)

DEPUTY PRESIDENT ASBURY

BRISBANE, 12 DECEMBER 2016

Application for approval of the Link Mining Enterprise Agreement 2016 – Right of Union that is not a bargaining representative to be heard – Refusal to provide application documents to Union that is not a bargaining representative – Consideration of whether Agreement passes BOOT – Genuine Agreement – Failure by employer to explain effect of scope of coverage clause of Agreement to employees – Commission unable to be satisfied that Agreement was genuinely agreed – Application for approval refused.

1. BACKGROUND

[1] Link Mining Services Pty Ltd (Link Mining) applies for approval of an enterprise agreement known as the Link Mining Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 14 October 2016 Construction, Forestry, Mining and Energy Union (CFMEU) corresponded with the Commission to advise of concerns with respect to pre-approval processes for the Agreement and regarding the satisfaction of the “Better off Overall Test” (BOOT). The CFMEU was not a bargaining representative for the Agreement and it was acknowledged that the Union does not have members employed by Link Mining. Notwithstanding this the CFMEU sought access to the Form F16 and Form F17 (the application documents) lodged by Link Mining and sought to be heard in relation to its concerns about the pre-approval requirements and the BOOT and in addition in relation to the request that the Union be provided with the application documents.

[4] Link Mining objected to the CFMEU being heard in relation to the approval of the Agreement and to the Union being provided with application documents. In a response to that correspondence sent to the CFMEU by my Associate, the Union was informed that it is generally not my practice to provide application documents to persons or organisations but that I would hear from the CFMEU in relation to the matters raised in its correspondence. The CFMEU was also requested to provide written submissions outlining the matters upon which it bases its objection to approval of the Agreement.

[5] The matter was subsequently listed for Conference/Hearing on 7 November 2016. Link Mining did not attend the hearing notwithstanding that the Notice of Listing was sent to the nominated representative of the Company. My Associate contacted Link Mining and received confirmation that it intended to proceed with the application for approval of the Agreement. On 10 November 2016, Link Mining filed submissions in response to the CFMEU submissions and the matter was listed for hearing by video link to Sydney, on 22 November 2016. Due to a power failure in the Commission’s Sydney premises, the listing was vacated and the application was heard on 23 November 2016.

2. CONSIDERATION

2.1 Overview of issues

[10] The CFMEU provided a 27 page submission outlining its standing to be heard; request for F16…

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: [2016] FWC 8910
Decision Date: 12 DECEMBER 2016

CaseChat Overview and Summary

In the case of Link Mining Services Pty Ltd, the Fair Work Commission was tasked with approving an enterprise agreement. The matter involved Link Mining Services, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which was not a bargaining representative. The primary dispute centred around the approval of the Link Mining Enterprise Agreement 2016, and specifically, whether the Commission should hear from the CFMEU, a union that was not a bargaining representative, and whether the employer should provide the application documents to the CFMEU. Additionally, the court had to determine if the Agreement met the Better Off Overall Test (BOOT), if it was a genuine agreement, and whether the employer adequately explained the Agreement's scope of coverage to the employees.

The legal issues before the court included whether the Commission should consider the CFMEU's submissions, despite it not being a bargaining representative, and whether the employer was obliged to provide the application documents to the CFMEU. Furthermore, the court had to assess if the Agreement passed the BOOT, if it was genuinely agreed upon by the employees, and whether the employer had sufficiently explained the scope of coverage clause to the employees. The court also needed to determine if the employer's failure to adequately explain the scope of coverage clause constituted a failure to genuinely agree upon the Agreement.

In considering these issues, the Fair Work Commission found that it was not appropriate to hear from the CFMEU as it was not a bargaining representative. However, the Commission decided to consider the CFMEU's submissions due to the potential impact on employees. Regarding the BOOT, the Commission concluded that the Agreement did not pass the test, as it did not provide sufficient benefits to the employees. The Commission also found that the Agreement was not genuinely agreed upon due to the employer's failure to adequately explain the scope of coverage clause to the employees. Consequently, the application for approval of the Agreement was refused.

The Fair Work Commission's final orders included the refusal of the application for approval of the Link Mining Enterprise Agreement 2016. The Commission did not find it necessary to hear from the CFMEU, as it was not a bargaining representative, but did consider the CFMEU's submissions due to their potential impact on employees. The Commission found that the Agreement did not meet the BOOT, was not genuinely agreed upon, and that the employer's failure to adequately explain the scope of coverage clause to the employees was a significant factor in its decision. As a result, the application for approval was refused, and the Agreement did not receive the necessary endorsement from the Fair Work Commission.

Orders