Mine Power Solutions Pty Ltd

[2020] FWCA 6453

[2020] FWCA 6453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mine Power Solutions Pty Ltd
(AG2020/3310)

MINE POWER SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2020

Mining industry
COMMISSIONER PLATT	ADELAIDE, 1 DECEMBER 2020

Application for approval of the Mine Power Solutions Pty Ltd Enterprise Agreement 2020.

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

[2] On 16 November 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) emailed the Commission seeking to be heard, noting that it has no members covered by the Agreement and was not a bargaining representative. The CFMMEU provided a written submission raising issues in relation to the geographical coverage of the Agreement, coverage of black coal mining industry employees, genuine agreement and better off overall test (BOOT) concerns.

[3] The matter was allocated to my Chambers on 17 November 2020.

[4] On 21 November 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), a bargaining representative, provided a written submission raising concerns in relation to genuine agreement, classifications and wages and the BOOT.

[5] On 24 November 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking. The matter was set down for a hearing on 16 December 2020 to provide the CEPU (as a bargaining representative) and CFMMEU (in order to inform myself of the facts) the opportunity to be heard.

[6] The Applicant submitted an undertaking in the required form dated 30 November 2020. The undertaking deals with the following topics:

•  The Agreement will apply to the State of South Australia only, excluding the greater metropolitan area of Adelaide.

•  The Applicant will not undertake work in the black coal mining industry as defined in the Black Coal Mining Industry Award 2010.

•  Where an employee is required to work at a location other than Roxby Downs and surrounding areas, the Applicant will provide an additional $1.50 per hour for all work performed at mining sites other than Olympic Dam.

•  Trades Assistant Level 1 employees are not required to work public holidays.

•  No employee will have their rate of pay reduced as a result of the new classification levels in the Agreement.

•  The Applicant will review the pay rates annually.

•  The reference to ‘the Company’ on the second line of clause 31.6.1 of the Agreement is replaced with ‘a reasonable person’.

[7] A copy of the undertaking has been provided to the bargaining representatives and to the CFMMEU and I have sought their views in accordance with s.190(4) of the Act. On 30 November 2020, the CFMMEU advised that on the basis of undertaking 2, the issue which the CFMMEU sought to be heard on has been resolved and the CFMMEU withdraws the objections referred to in its submissions seeking to be heard. The CEPU also advised that on the basis of undertakings 1, 3  and 5, the CEPU withdraws its objections and no longer wishes to be heard. The other bargaining representatives did not express any view on the undertaking.

[8] I have considered the reduced scope of the Agreement and if it represents a significant change, however I am satisfied that the scope as detailed in the Agreement was not intended by the parties and that the reduced scope reflects the status quo and the work currently performed by the employees who made the Agreement.

[9] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[10] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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) of the Act I note that the Agreement covers this organisation.

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

[12] 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 30 November 2024.

COMMISSIONER

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