DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mastermyne Underground Pty Ltd
(AG2021/3985)

COMMISSIONER JOHNS

SYDNEY, 16 JUNE 2021

Application for approval of the Mastermyne Underground Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Mastermyne Underground Pty Ltd Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) on 26 February 2021. The application was made by Mastermyne Underground Pty Ltd (Applicant/ Mastermyne/ Employer). The Agreement is a single enterprise agreement.

[2] Until it is replaced, the employees are covered by the Mastermyne Underground Pty Ltd Enterprise Agreement 2016 1(2016 Agreement). The 2016 Agreement passed its nominal expiry date on 23 March 2020. The Employer commenced bargaining when it issued a Notice of Employee Representational Rights (NERR) by email on 12 October 2020.

[3] The Agreement is largely a roll-over of the 2016 Agreement. The Agreement pay rates for full time employees are 18.76%-46.56% higher than comparative award rates. The Agreement offers wage increases of 1.5% on each anniversary of the Agreement during the nominal term.

[4] On 12 February 2021 14 of the employees eligible to vote voted to approve the Agreement.

[5] On 9 March 2021 I issued Directions, which programmed and provisionally listed the matter for hearing. I also provided the parties with the Commission’s administrative analysis of the Agreement (Commission’s Checklist). I explained that I had not formed any view about the matters in the Commission’s Checklist, but that I was providing it as a matter of procedural fairness.

[6] The Directions provided an opportunity for the Applicant to address any issues identified in the review of the Commission’s Checklist by way of filing further materials and/or the proffering of undertakings.

[7] On 23 March 2021, the Employer provided a response to the matters raised in the Checklist. It made submissions about the Commission’s Checklist. 2 It proffered no undertakings. To the extent that the Employee took issue with aspects of the Commission’s Checklist, for the most part, I agree with the Employer’s rebuttal analysis.

[8] On 25 March 2021, The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union), who were a bargaining representative during negotiations for the Agreement, lodged a Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement in which it indicated that it opposed the approval of the Agreement. In light of the opposition to the approval of the Application, it was necessary that the Directions remain in place, with both parties being afforded the opportunity to provide submissions and evidence, and the matter being set down for hearing.

The hearing

[9] A hearing in the matter occurred on 15 April 2021. The Applicant was represented by Mr M Connan, Solicitor of Herbert Smith Freehills. Being satisfied that the matter was invested…

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: Mastermyne Underground Pty Ltd [2021] FWC 3483
Case: [2021] FWC 3483
Decision Date: 16 JUNE 2021

CaseChat Overview and Summary

In the Fair Work Commission, Mastermyne Underground Pty Ltd sought approval for the Mastermyne Underground Pty Ltd Enterprise Agreement 2020. The application arose following negotiations between the company and its employees represented by the Construction, Forestry, Maritime, Mining and Energy Union. The primary dispute centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, particularly in terms of the processes followed and the fairness of the terms negotiated.

The legal issues before the Commission involved verifying the procedural legitimacy of the agreement formation process and assessing whether the terms of the agreement were fair and reasonable. Key points of contention included whether there was genuine negotiation, if the agreement complied with minimum entitlements, and whether it adhered to procedural fairness requirements. The Commission had to scrutinise the evidence of negotiations, the terms of the agreement, and the manner in which the agreement was presented to the employees.

The Fair Work Commission found that the agreement had been negotiated in good faith and that the process followed was procedurally sound. The Commission also determined that the terms of the agreement were fair and reasonable, taking into account the nature of the industry, the bargaining positions of the parties, and the overall fairness of the terms. The Commission concluded that the agreement met the statutory criteria for approval and did not contain any provisions that would disadvantage the employees. Consequently, the application for approval of the Mastermyne Underground Pty Ltd Enterprise Agreement 2020 was granted.

Orders