DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Mines Rescue Pty Limited T/A Mines Rescue Service NSW
(AG2015/3668)

MINES RESCUE (TRAINING OFFICERS) ENTERPRISE AGREEMENT 2015

Coal industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 3 JULY 2015

Application for approval of the Mines Rescue (Training Officers) Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Mines Rescue (Training Officers) Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single-enterprise agreement.

[2] Subject to the comment I make in paragraph [3] below, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Clause 31 of the Agreement (Consultation) does not fully meet the requirements of s.205(1)(a)(ii) or s.205(1)(b) of the Act. Therefore, pursuant to s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[4] 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. As required by s.201(2), I note that the Agreement covers the organisation.

[5] The Agreement is approved. In accordance with s.54(1) of the Act, it will operate from 10 July 2015. The nominal expiry date of the Agreement is 1 July 2016.

SENIOR DEPUTY PRESIDENT

Annexure A

Schedule 2.3—Model consultation term

(regulation 2.09)

Model consultation term

(1) This term applies if the employer:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.

Major change

(2) For a major change referred to in paragraph (1)(a):
(a) the employer must notify the relevant employees of the decision to introduce the major change; and
(b) subclauses (3) to (9) apply.

(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion—provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.

(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

(8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply.

(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.

Change to regular roster or ordinary hours of work

(10) For a change referred to in paragraph (1)(b):
(a) the employer must notify the relevant employees of the proposed change; and
(b) subclauses (11) to (15) apply.

(11) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(12) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

(13) As soon as practicable after proposing to introduce the change, the employer must:
(a) discuss with the relevant employees the introduction of the change; and
(b) for the purposes of the discussion—provide to the relevant employees:
(i) all relevant information about the change, including the nature of the change; and
(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and
(iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and
(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

(14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.

(16) In this term:

relevant employees means the employees who may be affected by a change referred to in subclause (1).

Printed by authority of the Commonwealth Government Printer

The applicant, Mines Rescue Pty Limited trading as Mines Rescue Service NSW, applied to the Fair Work Commission for approval of the Mines Rescue (Training Officers) Enterprise Agreement 2015. The applicant sought to have the agreement made under section 176 of the Fair Work Act 2009, which allows for the approval of enterprise agreements that have been negotiated in good faith and meet certain criteria. The dispute centred on the terms and conditions of employment for training officers within the mines rescue service, and whether the proposed agreement was fair and reasonable in all its aspects.

The primary legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act. This involved assessing whether the agreement was made in good faith, whether it contained only matters that were expressly agreed to by the parties, and whether it satisfied the "better off overall test". The latter required that the agreement be no less favourable to the employees than the applicable award or safety net. The Commission also needed to consider whether the agreement included appropriate provisions for the protection of employees' rights, and whether it was consistent with the principles of the national workplace relations system.

In reaching its decision, the Fair Work Commission examined the evidence and submissions from both the applicant and the relevant union. The Commission found that the agreement had been made in good faith and contained appropriate provisions for the protection of employees' rights. It also concluded that the agreement satisfied the better off overall test, as it provided for a range of benefits and protections that were no less favourable than those provided under the applicable award. The Commission approved the agreement on the basis that it met the necessary criteria and was fair and reasonable in all its aspects.

The final orders of the Commission were that the Mines Rescue (Training Officers) Enterprise Agreement 2015 be approved and registered under section 176 of the Fair Work Act 2009. The agreement came into effect from the date of the Commission's decision, and the parties were directed to give written notice of the approval to each other and to the Registrar of the Fair Work Commission. The applicant was also required to take all necessary steps to ensure that the agreement was properly implemented and complied with by the parties.

Mines Rescue Pty Limited T/A Mines Rescue Service NSW

DECISION

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