Mount Isa Mines Limited T/A Glencore

[2019] FWCA 7949

[2019] FWCA 7949

FAIR WORK COMMISSION

DECISION

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

Mount Isa Mines Limited T/A Glencore
(AG2019/3522)

PORT OPERATIONS - MOUNT ISA MINES LIMITED ENTERPRISE AGREEMENT, 2019

Mining industry
COMMISSIONER HUNT	BRISBANE, 21 NOVEMBER 2019

Application for approval of the Port Operations - Mount Isa Mines Limited Enterprise Agreement, 2019.

[1] Mount Isa Mines Limited T/A Glencore (the Employer) has applied for approval of an enterprise agreement known as the Port Operations - Mount Isa Mines Limited Enterprise Agreement, 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.

[3] After receiving the Employer’s undertakings I noted to the Employer that the Agreement was signed by an employee covered by the Agreement, Mr Anthony Dahl, who was described as the “Employee Representative on Agreement Development Team”. I asked the Employer to confirm the employees that were on the “Agreement Development Team” and whether any of them were employee bargaining representatives for the Agreement. The Employer responded that there were four employees on the Agreement Development Team, but none of them were nominated employee bargaining representatives.

[4] While noting the Employer’s response, I considered that it was not appropriate to determine this matter without providing an opportunity for the employees on the Agreement Development Team to provide their views on the concerns raised by the Commission and the Employer’s proposed undertakings.

[5] I sought the views of the employees on the Agreement Development Team regarding the Employer’s responses to the concerns raised by the Commission and the Employer’s undertakings provided by the Employer. Mr Dahl responded on behalf of all of the employees on the Agreement Development Team and indicated that they were happy with the Employer’s proposed undertakings. However, the employees remained concerned about whether the Agreement may pass the better off overall test (BOOT) pursuant to s.193 of the Act. Mr Dahl provided a copy of an example work roster indicative of hours actually worked by the employees to be covered by the Agreement and asked that the Commission perform a modelling exercise on that example roster.

[6] The Commission performed the additional modelling requested. I considered that additional modelling and informed the parties that my preliminary view that the additional modelling resolved any remaining BOOT issues with the Agreement. I provided the results of the Commission’s additional modelling to the Employer and the employees on the Agreement Development Team and asked for their views.

[7] Two of the four employees on the Agreement Development Team provided their views to chambers; both of them indicating that they were satisfied with the Commission’s additional modelling. The Employer disagreed with the Commission’s further modelling and submitted that the Agreement provided more favourable terms than the additional modelling might indicate, despite my preliminary view that any remaining BOOT issues had been resolved on the basis of the additional modelling.

[8] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[9] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 November 2019. The nominal expiry date of the Agreement is the date four years after the date of approval by the Commission.

COMMISSIONER

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Annexure A: