Mansfield Crushing Pty Ltd

[2024] FWCA 2152

[2024] FWCA 2152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mansfield Crushing Pty Ltd

(AG2024/1675)

MANSFIELD CRUSHING PTY LTD ENTERPRISE AGREEMENT 2023

Quarrying industry
COMMISSIONER CONNOLLY	MELBOURNE, 13 JUNE 2024

Application for approval of the Mansfield Crushing Pty Ltd Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Mansfield Crushing Pty Ltd Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Mansfield Crushing Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 24 May 2024.

1. The notification time for the Agreement under s.173(2) was 16 October 2023 and the Agreement was made on 13 May 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

1. On 31 May 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In considering whether the BOOT is met, concerns were identified with regard to factored rates provided by Clause 9 of the Agreement and the payment of overtime for work in excess of 10.5 hours a day, part time hours, the minimal casual engagement and applicable allowances.

1. On 6 June 2024, the Employer provided my Chambers with further submissions and written undertakings to clarify and address these concerns, a copy is attached in Annexure A.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. It appears that the pre-6 June reforms version of the Notice of Employee Representational Rights (NERR) was provided to the Commission at lodgement, I do not believe that this had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 13 June 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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