[1] Application has been made for approval of the MMS Latrobe Valley Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Trustee for the Tim Brown Family Trust ATF Mechanical Maintenance Solutions Pty Ltd (MMS). The Agreement is a single enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) each oppose the application.

[3] The Agreement was approved on 14 December 2018. 1 On appeal, a Full Bench of the Commission quashed the approval decision and remitted the matter to me for redetermination.2 This decision deals with the application anew.

Background

[4] The Agreement covers MMS and its employees in the classifications listed in Appendix 1 to the Agreement. It applies to work performed at the Loy Yang A, Loy Yang B and Yallourn power stations in Victoria. It also applies to MMS’s workshop at Centre Road, Morwell in Victoria but does not apply to supervisory or administrative employees.

[5] The duties associated with classifications MMS1 to MMS8 in Appendix 1 of the Agreement are Confined Space Hole Watch, General Labourer/Fire Watch, Trades Assistant, Cleaner/Peggy, Storeperson, Basic, Intermediate and Advanced Rigger, Basic, Intermediate and Advanced Scaffolder, Dogger, Mobile Crane Operator or Crane Driver, Welder Non-Trade, Tradesperson Level 1 and 2, Electrician, Dual Trade Qualified and Instrument Fitter.

[6] Some of the employees who will be covered by the Agreement are currently covered by the Mechanical Maintenance Solutions P/L (MMS) Latrobe Valley Power Stations (AMWU and CFMEU) Greenfields Enterprise Bargaining Agreement 2012-2016 3(the Greenfields Maintenance Agreement) which is expressed to cover MMS, the CFMMEU, the AMWU and:

“all Company employees who are engaged in maintenance work on the Power Stations and Open Cut Mine sites in the Latrobe Valley (excluding Yallourn W Power Station and Mine) in the classifications and occupations listed in Clause 35 Appendix 1. The Agreement does not apply to work (other than maintenance work) within the definition of “general building and construction” in the Building and Construction General On-Site Award 2010. The Agreement applies to the exclusion of any other agreement.”

[7] The classifications and occupations listed in clause 35, Appendix 1 to the Greenfields Maintenance Agreement are Supervisor Levels 1 and 2, Team Leader, Tradesperson Special Class Levels I and II, Pressure Welder, Crane Operator, Tradesperson, Basic, Intermediate and Advanced Scaffolders and Riggers, Intermediate Dogman, Trades Assistant, Storeman and Peggy.

[8] While the scope of the Agreement is broader than the Greenfields Maintenance Agreement, there is an overlap in coverage in relation to employees working at the Loy Yang A…

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: Mechanical Maintenance Solutions Pty Ltd [2019] FWC 6801
Case: [2019] FWC 6801
Decision Date: 2 OCTOBER 2019

CaseChat Overview and Summary

The case before the Fair Work Commission involved Mechanical Maintenance Solutions Pty Ltd and its employees, represented by the Electrical Trades Union of Australia. The dispute centred on the application for the approval of the MMS Latrobe Valley Enterprise Agreement 2018. The union sought to challenge the agreement on the basis that it did not adequately address certain aspects of employee entitlements, particularly concerning penalty rates and overtime. The union argued that the proposed changes would negatively impact the employees' conditions, contrary to the principles of fairness and equity.

The primary legal issues that the commission had to decide were whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the commission had to determine if the agreement met the requirements for "better off overall" and "no detriment" as stipulated in the Act. Additionally, the commission needed to assess whether the agreement provided adequate protections for employees and if it aligned with the objectives of promoting harmonious, productive, and cooperative workplace relations.

In examining the application, the commission considered the submissions from both parties, along with the relevant evidence and arguments presented. The commission concluded that the proposed enterprise agreement did not fully satisfy the "better off overall" test, primarily due to changes in penalty rates and overtime provisions that would adversely affect employees. Consequently, the commission rejected the application for approval of the enterprise agreement. The commission emphasised the importance of maintaining fair and equitable terms for employees, ensuring that any changes to their conditions were justifiable and did not result in detriment. This decision underscored the need for enterprise agreements to align with the overarching principles of the Fair Work Act.

Orders