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

1. 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.

1. 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.

1. 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.

1. 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. 

1. 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.

1. 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.

1. Mr Nash submitted that the Applicant is relatively new to the mining contractor industry and the information concerning employee’s wage rates and incentive payments in Schedule 3 is commercially sensitive information, the release of which would impact the Applicant’s ability to attract and retain staff. Mr Nash also said that due to the circumstances in which Applicant’s project operates, the publication of Schedule 3 would also likely result in the Applicant losing a competitive advantage in the industry. For the MEU, Mr Brunker confirmed that the Union supports the Applicant’s position that the information be kept confidential. Pursuant to s. 594(1) of the Act, I order that Schedule 3 be kept confidential and not published on the basis that it contains commercially sensitive operational information, and I am satisfied that it is desirable that this information is restricted from publication.

1. I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations in support of an application for approval of the Agreement and the responses to requests for further information provided by the Applicant, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. As the Agreement will cover all of the Applicant’s employees, the requirements in s. 186(3) and (3A) are not relevant to the present application.

1. The MEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s. 201(2) of the Act, I note that the Agreement covers the MEU.

1. The Agreement is approved in accordance with s. 54 of the Act and will operate from 22 December 2022. The nominal expiry date of the Agreement is 22 December 2025.

DEPUTY PRESIDENT

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