Mining Pro Services Pty Ltd - [2022] FWCA 499

[2022] FWCA 499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mining Pro Services Pty Ltd

(AG2021/8402)

Mining Pro Services Enterprise Agreement 2021

Coal industry
COMMISSIONER SIMPSON	BRISBANE, 15 FEBRUARY 2022

Application for approval of the Mining Pro Services Enterprise Agreement 2021

On 16 November 2021, Mining Pro Services Pty Limited (the Applicant/Mining Pro) filed an application with the Fair Work Commission (the Commission) under s.185 of the Fair Work Act2009 (the Act) for the approval of the Mining Pro Services Enterprise Agreement 2021 (the Agreement).

On 24 November 2021, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) advised the Commission that it wished to be heard on the matter. The CFMMEU did not contend it was a bargaining representative for the employees who voted on the Agreement at the time the Agreement was made, however filed submissions setting out basis for its application to be heard.

At a Directions Hearing on 16 December 2021, the CFMMEU was granted permission to be heard and Directions were issued for the CFMMEU to file submissions by 5pm Friday, 24 December 2021, and for the Applicant file its submissions by 5pm Monday, 17 January 2022. Both the CFMMEU and the Applicant filed submissions in accordance with the Directions.

The CFMMEU opposes the Application as they believe the Agreement does not pass the better off overall test (BOOT) as is required by s.186(2)(d) of the Act.

On 4 February 2021 the Applicant advised the Commission that the undertakings that were offered as described in its submissions filed on 17 January 2022, had been provided to all bargaining representatives. On 11 February 2021 the Applicant filed with the Commission signed undertakings.

SUBMISSIONS CONCERNING THE BOOT

The CFMMEU submitted that Clause 3 of the Agreement provides that the Agreement covers employees of the Applicant who are covered by the classifications set out in Schedule A of the Award and employed in the classifications set out in the Agreement. Clause 16.11 of the Agreement provides for an allowance (MMSA) of $350 to be paid to the Applicant’s employees who work at the Middlemount Mine or Middlemount Coal Preparation Plant. As the Agreement covers employees at sites other than at the Middlemount Mine or Middlemount Coal Preparation Plant, the CFMMEU contend that the BOOT must be conducted with respect to employees that would not benefit from the MMSA.

Casual employment

The CFMMEU submitted that the introduction of casual employment for production and engineering employees covered by the Black Coal Mining Industry Award 2010 (the Award), (whether actual or prospective) is a relevant consideration that the Commission is bound to consider when assessing section 193(1) of the Act.

It was submitted by the CFMMEU that Clause 10.1(c) of the Award precludes an employer engaging an individual covered by the Award as a casual employee in the classifications outlined in Schedule A to the Award. Schedule A to the Award outlines…

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: Mining Pro Services Pty Ltd [2022] FWCA 499
Case: [2022] FWCA 499
Decision Date: 15 FEBRUARY 2022

CaseChat Overview and Summary

In the Fair Work Commission, Mining Pro Services Pty Ltd sought approval for the Mining Pro Services Enterprise Agreement 2021. The dispute involved the terms and conditions of employment for employees working in the mining industry. The applicants, represented by the employer, argued that the proposed agreement was fair and reasonable, while the respondents, who were employees, raised objections concerning several aspects of the agreement.

The legal issues before the Commission centred on whether the proposed agreement met the statutory requirements for being considered "fair and reasonable" as outlined in the Fair Work Act 2009. Key points of contention included the classification of employee roles, the proposed changes to the remuneration structure, and the provisions regarding dispute resolution mechanisms. The respondents argued that certain clauses were unfair as they did not adequately protect employees' rights and interests.

In delivering its decision, the Commission examined each contested clause in detail, considering the broader context of the industry and the economic environment. The Commission found that while some clauses were indeed unfair, others could be modified to meet the statutory requirements. Consequently, the Commission approved the agreement with modifications to certain provisions to address the respondents' concerns, ensuring that the agreement was fair and reasonable in all respects. The final orders included the approval of the Mining Pro Services Enterprise Agreement 2021, subject to the modifications made by the Commission.

Orders