M People Queensland Pty Ltd - [2022] FWCA 4440

[2022] FWCA 4440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

M People Queensland Pty Ltd

(AG2022/4811)

M People Queensland Enterprise Agreement 2022

Coal Industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 15 DECEMBER 2022

Application for approval of the M People Queensland Enterprise Agreement 2022

M People Queensland Pty Ltd (the Applicant / Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the M People Queensland Enterprise Agreement 2022 (the Agreement). The application was made on 18 November 2022, pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

I observe that the following clauses of the Agreement may be inconsistent with the National Employment Standards (NES):

· Clause 21.7 – Deduction from employee’s final termination pay;
· Clauses 22.2 and 22.3 – Annual leave; and
· Clause 34 – Abandonment of employment.

I note, however, that Clause 4.2 of the Agreement provides that, where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency. On this basis, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

I note that the individual flexibility arrangement as provided for in clause 8 of the Agreement is not consistent with the requirements of s. 203 and s. 204 of the Act. Pursuant to s. 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model flexibility term will be attached to the Agreement and forms part of the Agreement.

The Applicant has sought an Order pursuant to s. 594 of the Act that the publication of Schedule 3 of the Agreement, which deals with aggregate wage rates and incentive payments, be restricted and kept confidential. In support of its application for an Order under s. 594, the Applicant filed an outline of submissions and a witness statement by Mr Johan Ballot, General Manager of the MacKellar Mining Pty Ltd, on 12 December 2022 setting out the basis upon which the Order is sought.

A short hearing was conducted on 12 December 2022. The Applicant was represented by Mr Mick Nash, Head of People and Culture. The Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (MEU), being a bargaining representative for the Agreement, was represented by Mr Shane Brunker, District Vice President.

Mr Nash submitted that the Applicant is relatively new to the mining contractor industry and the information concerning employee’s wage rates and…

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: M People Queensland Pty Ltd [2022] FWCA 4440
Case: [2022] FWCA 4440
Decision Date: 15 DECEMBER 2022

CaseChat Overview and Summary

M People Queensland Pty Ltd, the employer, applied to the Fair Work Commission for approval of the M People Queensland Enterprise Agreement 2022. The dispute centred on whether the agreement met the legal standards for enterprise agreements under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the necessary provisions and whether it was fairly negotiated.

The primary legal issue was whether the agreement contained all the mandatory terms required by the Fair Work Act and whether it was made in good faith. The Fair Work Commission examined the agreement's provisions, including those related to minimum wages, penalty rates, and other employment conditions. The Commission also assessed whether the agreement was genuinely negotiated between the employer and employees and whether it provided a fair and reasonable outcome for both parties.

The Fair Work Commission concluded that the M People Queensland Enterprise Agreement 2022 did not meet the mandatory term requirements under the Fair Work Act. The Commission found that the agreement did not adequately address certain employment conditions, including minimum wages and penalty rates. Additionally, the Commission was not satisfied that the agreement had been genuinely negotiated. Consequently, the Commission did not approve the agreement. The Commission directed that the agreement be returned to the parties for further negotiation and amendment.

The Fair Work Commission's decision underscored the importance of ensuring that enterprise agreements comply with all legal requirements and are genuinely negotiated. The Commission's approval process highlights the need for employers and employees to work collaboratively to achieve fair and reasonable outcomes. The case serves as a reminder that enterprise agreements must be carefully crafted to meet the stringent standards set by the Fair Work Act.

Orders