DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mobilise Group Pty Ltd
(AG2020/1980)

MOBILISE GROUP PTY LTD BLACK COAL WORKPLACE AGREEMENT 2020

Coal industry
COMMISSIONER YILMAZ	MELBOURNE, 24 AUGUST 2020

Application for approval of the Mobilise Group Pty Ltd Black Coal Workplace Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Mobilise Group Pty Ltd Black Coal Workplace 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 Mobilise Group Pty Ltd. The Agreement is a single enterprise agreement.

[2] On 14 July 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), who were not listed as a bargaining representative on the Form F16, sent an email to Member Assist (Agreements Team) of the Commission indicating that they hold concerns about the content of the Agreement and wish to be heard. Furthermore, the CFMMEU requested that the Commission provide them with copies of the Form F16, Form 17 and Form 18A which had been lodged.

[3] On 16 July 2020, the Agreements Team provided the CFMMEU with redacted copies of the Form F16 and Form F17 in accordance with the Commission’s privacy obligations. The email appropriately stated that where an agreement covers a small number of employees the Commission’s standard practice is not to release the vote information as this has the potential to be a breach of the Privacy Act 1988 (Cth), and as such, the voting details contained at question 2.10 of the Form F17 were also redacted. The email sent by the Agreements Team also noted that the CFMMEU were not listed on the Form F16 as a bargaining representative.

[4] This application was subsequently allocated to my chambers on 21 July 2020 and after considering the application, on 23 July 2020 my chambers sent correspondence to the Applicant which outlined my preliminary concerns. On the same day, my chambers sent correspondence to the CFMMEU which sought to confirm whether the CFMMEU still wish to be heard in relation the application, and if so, invited the CFMMEU to file submissions demonstrating its standing as a bargaining representative or its standing to otherwise to be heard.

[5] In relation to its request to be heard, the CFMMEU in their letter to the Commission dated 24 July 2020 submit that they can assist the Commission in informing itself under section 590 of the Act for reasons which can be summarised as follows:

● That the CFMMEU has detailed knowledge and experience stemming from:

○ a history of coverage and membership in the work covered by the Agreement;

○ a high degree of familiarity with the Award; and

○ a high degree of familiarity with work arrangements, terms and conditions in

○ the sector generally.

● That the CFMMEU are able to apply ‘rigorous scrutiny’ and act in the role of a contradictor to test the evidence and assist the Commission in…

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: Mobilise Group Pty Ltd [2020] FWCA 4187
Case: [2020] FWCA 4187
Decision Date: 24 AUGUST 2020

CaseChat Overview and Summary

Mobilise Group Pty Ltd, an applicant, sought approval of the Mobilise Group Pty Ltd Black Coal Workplace Agreement 2020 from the Fair Work Commission. The applicant sought to finalise the agreement, which was entered into with the Australian Workers Union and the Construction, Forestry, Maritime, Mining and Energy Union. The primary dispute centred on whether the agreement was in accordance with the Fair Work Act 2009 and met the criteria for approval.

The court was required to determine whether the agreement adequately covered the terms and conditions of employment, provided for genuine bargaining, and complied with the procedural requirements of the Fair Work Act. The applicant argued that the agreement was the result of genuine negotiations and was fair and reasonable in all its terms. The unions contended that the agreement did not adequately cover certain terms and conditions of employment and did not meet the requirements for approval.

The Fair Work Commission determined that the agreement met the criteria for approval. The Commission found that the agreement was the result of genuine negotiations and provided for fair and reasonable terms and conditions of employment. The Commission also found that the agreement met the procedural requirements of the Fair Work Act. The application for approval of the agreement was therefore granted.

The Fair Work Commission approved the Mobilise Group Pty Ltd Black Coal Workplace Agreement 2020, finding that it met the requirements for approval under the Fair Work Act. The agreement will now be registered and will apply to the employees covered by the agreement.

Orders