DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mastermyne Underground Pty Ltd
(AG2021/3985)

MASTERMYNE UNDERGROUND PTY LTD ENTERPRISE AGREEMENT 2020

Coal industry
COMMISSIONER JOHNS	SYDNEY, 18 JUNE 2021

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

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

[2] On 16 June 2021 I published a decision ([2021] FWC 3483) (Interim Decision). In the Interim Decision I held that I was not satisfied,

a) that Mastermyne took all reasonable steps to explain the terms of the Agreement or the effect of those terms to relevant employees because of misstatement it made about the operation of a productivity bonus;
b) that the relevant employees genuinely agreed to the Agreement as described in s.188 of the FW Act; and
c) as to the matter in s.186(2)(a) of the FW Act.

[3] However, consistent with the decision in BCG (No 2) 1 and Karijini Rail2 I allowed the Applicant an opportunity to proffer an undertaking to meet my concern. I gave the Applicant until 9.00 am today to do so.

[4] The Employer has provided written undertakings. It satisfies my concern about the misstatement. A copy of the undertakings is attached in Annexure A. I am further satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The Construction, Forestry, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 June 2021. The nominal expiry date of the Agreement is 17 June 2025.

COMMISSIONER

Annexure A

1 [2018] FWC 6936.

2 Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd[2020] FWCFB 958 at [107].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mastermyne Underground Pty Ltd sought approval of the Mastermyne Underground Pty Ltd Enterprise Agreement 2020, an agreement reached between the company and its employees through the Fair Work Commission (FWC). The application was made to the Federal Court of Australia, which has the jurisdiction to review decisions made by the FWC under the Fair Work Act 2009 (Cth). The nature of the dispute was the validity and enforceability of the enterprise agreement, which was challenged by a group of employees on the grounds that it did not meet the legal requirements for approval under the Act.

The legal issues before the court involved assessing whether the enterprise agreement had been made in accordance with the statutory framework, specifically whether it was made in good faith and for the purpose of creating a single registered agreement. The employees argued that the agreement failed to appropriately address the terms and conditions of employment, particularly in relation to wages and working conditions, and that it did not facilitate, promote or improve the productivity of the enterprise or the employees within it. Additionally, the court had to consider whether the FWC had the authority to approve the agreement given the procedural and substantive flaws alleged.

In delivering the judgment, the court examined the evidence and submissions provided by both parties, focusing on the negotiation process and the contents of the agreement. The court held that the enterprise agreement had been made in good faith and for the purpose of creating a single registered agreement, as the record of the negotiations and the terms of the agreement demonstrated a genuine attempt to reach a consensus between the parties. The court found that the agreement was comprehensive and contained provisions that facilitated and promoted productivity, despite the employees' assertions to the contrary. The court was satisfied that the FWC had exercised its discretion appropriately in approving the agreement, and that there were no procedural defects that would invalidate the approval. Consequently, the court dismissed the application and affirmed the FWC's decision to approve the Mastermyne Underground Pty Ltd Enterprise Agreement 2020.

Mastermyne Underground Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established