Mobilise Group Pty Ltd

[2020] FWCA 4187

[2020] FWCA 4187

FAIR WORK COMMISSION

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 reaching the requisite state of satisfaction;

● The absence of bargaining representatives and the apparent absence of bargaining in relation to the Agreement;

● That the CFMMEU is able to assist the Commission ‘in all matters it is required to

● consider in the present application’ and, assist with consideration of the Better off Overall Test (BOOT) in relation to casual employees, and in relation to genuine agreement which relates directly to industry and award conditions specific to the black coal mining industry.

[6] After considering the CFMMEU’s submissions regarding its request to be heard, the CFMMEU were invited to file any further submissions regarding its concerns about the Agreement’s coverage and application over casual employees for the purposes of the BOOT.

[7] On 4 August 2020, the CFMMEU filed their further written submissions in support of their claim that casual employees would not be better off under the Agreement as compared to if they had been covered by the Black Coal Mining Industry Award 2010 (the BCMI Award). In their submissions, the CFMMEU state that their primary submission is that ‘even if the introduction of casual employment is considered to be a general benefit by an individual employee, this will not always be the accepted view of each prospective award covered employee, and in the specific context of the BCMI Award, for the purposes of the better off overall test (BOOT), that benefit does not outweigh the detriments arising through its introduction.’ 1 Furthermore, the CFMMEU refer to and rely on the Loaded Rates Agreements2 decision of the Full Bench of the Commission in relation to the key matters that must be considered when conducting the BOOT.3

[8] The CFMMEU in their further written submissions compare the fact the Agreement allows for the engagement of casual employment of any kind whereas under the BCMI Award, employees may only be engaged as either a part time or full-time employee. This is where, it is submitted, lies the issue in terms of whether the Agreement passes the BOOT. In particular, if an employee was engaged in a production or engineering category under the BCMI Award, as a part time employee they would be entitled to inter alia, personal leave and the benefits associated with personal leave under the BCMI Award, notice of termination and redundancy entitlements, the benefit of ongoing employment/job security, pay for public holidays not worked, reasonably predictable hours of work, annual leave and relevant leave loading 4.

[9] In their submission, the CFMMEU set out how casual employees covered by the Agreement would be financial worse as a result of not receiving annual leave and personal leave entitlements when compared to if they were covered by the BCMI Award as a permanent employee. To this end, the CFMMEU submit that the detriments that have been identified are not outweighed by the 25% loading, and the further 1% above award loading, provided by the terms of the Agreement and therefore the Agreement does not pass the BOOT and should not be approved by the Commission. 5

[10] On 23 July 2020 my chambers sent correspondence to the Applicant which outlined my preliminary concerns. The correspondence set out the CFMMEU’s request for documents and request to be heard, that the flexibility term set out in the Agreement did not meet the requirements of the Act, that the Agreement does not make it clear whether employees receive a loading when working on public holidays and that the Agreement allows for the coverage and engagement of casual employees in sectors where only permanent employment is contemplated under the BCMI Award.

[11] In response to the preliminary concerns raised and in addressing the CFMMEU’s correspondence of 24 July 2020, the Applicant provided an undertaking which clarified the operation of public holiday penalties, acknowledged that the model flexibility term will be taken to be a term of the Agreement, presented submissions in response to the CFMMEU’s correspondence and addressed the point raised regarding casual employees.

[12] In relation to casual employees and the BOOT, the Applicant refers to and largely relies upon two decisions of the Full Bench of the Commission being Construction, Forestry, Mining and Energy Union v SESLS Industrial Pty Ltd (SESLS Industrial) 6 and Construction, Forestry, Maritime, Mining and Energy Union v SRSW Pty Ltd (Stella Recruitment)7.

[13] It is noted that the Full Bench in STELLA Recruitment adopted and confirmed the approach the Full Bench had taken in SESLS Industrial, namelythat ‘it assumed, but did not necessarily accept, that the test requires a comparison between casual employment under the agreement and part-time or full-time employment under the Award’. 8 Furthermore, the Full Bench in STELLA Recruitment followed the reasoning as set out in SESLS Industrial that whilst the BCMI Award did not contemplate the engagement of casual production employees, a 25% loading was considered an acceptable loading and that the Agreement passed the BOOT.

[14] In relation to the application which is currently before me, and having considered the Full Bench decisions of SESLS Industrial and STELLA Recruitment, I am not of the view that a detailed analysis of what a casual engineer employee or a casual production employee would be entitled to if engaged as a part time or full-time employee under the BCMI Award needs to be undertaken for the purposes of determining whether each relevant employee is better off overall under the Agreement. Further, while the Award does not contemplate casual employment, the provision of a casual loading plus 1% in this agreement, in my view, passes the BOOT. I also note the casual conversion clause to permanent employment after 12 months. I am satisfied that production and engineer employees engaged as casuals will not be disadvantaged.

[15] After considering the materials filed by the CFMMEU and the material filed by the Applicant, I am satisfied that the Agreement passes the BOOT and is therefore capable of approval.

[16] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[17] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met.

[18] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[19] The Agreement is approved and in accordance with s.54, will operate from 31 August 2020. The nominal expiry date of the Agreement is 23 August 2024.

COMMISSIONER

Annexure A

 1   CFMMEU’s Further Written Submissions dated 8 August 2020 at paragraphs 5 - 12.

 2   [2018] FWCFB 3610.

 3   CFMMEU’s Further Written Submissions dated 8 August 2020 at paragraph 7.

 4   CFMMEU’s Further Written Submissions dated 8 August 2020 at paragraphs 14.

 5   CFMMEU’s Further Written Submissions dated 8 August 2020 at paragraph 36.

 6   [2017] FWCFB 3659.

 7   [2020] FWCFB 2052.

 8   Ibid at paragraph 7.

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