DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mulgoa Quarries Pty Limited
(AG2019/3985)

MULGOA QUARRIES PTY LIMITED QUARRY AND PLANT OPERATORS ENTERPRISE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 26 FEBRUARY 2020

Application for approval of the Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2019-2023.

[1] An application has been made for approval of an enterprise Agreement known as the Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made Mulgoa Quarries Pty Limited. The Agreement is a single enterprise Agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was a bargaining representative for the Agreement, as were five employee bargaining representatives.

[3] After being notified of Mulgoa Quarries’ intention to initiate bargaining for the Agreement on 20 February 2019 the matter was the subject of negotiations which ultimately led to a ballot of employees being conducted on 14 October 2019 which resulted in the Agreement being made on that day. At the time of the vote 63 employees were covered by the Agreement of whom 52 cast a valid vote, with 48 employees voting to approve the Agreement. The proposed Agreement would replace an earlier Agreement, the Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2015–2018.

[4] After an application was made by Mulgoa Quarries to the Commission for approval of the Agreement, the CFMMEU notified the Commission that it opposed approval for four reasons, namely that the employees covered by the proposed Agreement did not genuinely agree to the proposed Agreement; there were misrepresentations made to the employees in regards to their right to nominate bargaining representatives; the proposed Agreement contains an unlawful term within the meaning of s.195(1) of the Act; and it does not pass the better off overall test (BOOT).

[5] A hearing on the subject was convened on 29 January 2020, with Ms E Rooke of the Civil Contractors Federation of New South Wales appearing on behalf of Mulgoa Quarries and Mr D Syron appearing on behalf of the CFMMEU. At the conclusion of the hearing I invited the Applicant to consider whether further or alternative undertakings needed to be given on several matters and then invited the parties, and especially the CFMMEU, to consider whether revised undertakings may lead to the union withdrawing its objection. That did not occur, with the CFMMEU identifying to the Commission that it continued to object to certain items of the revised undertakings provided. The form of the Applicant’s revised undertakings is as follows, noting that the CFMMEU continues to object to items 4 and 5 of the following final version of undertakings given on 4 February 2020:

“2. We undertake that the rates of pay outlined in Appendix A that apply from approval will apply at test time.

3. We undertake that the Building and Construction General On-site…

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.

Continue reading Mulgoa Quarries Pty Limited

Details

AGLC: Mulgoa Quarries Pty Limited [2020] FWC 1063
Case: [2020] FWC 1063
Decision Date: 26 FEBRUARY 2020

CaseChat Overview and Summary

The parties to the case were Mulgoa Quarries Pty Limited and the workers' union. The dispute centred around the approval of a proposed enterprise agreement for the period 2019-2023. The case was heard in the Fair Work Commission. The legal issues that needed to be resolved involved the fairness and compliance of the proposed agreement with the relevant industrial laws and regulations.

The court examined whether the agreement contained all necessary provisions, including minimum wage rates, leave entitlements, and other employment conditions as stipulated by law. It also had to determine if the agreement was negotiated in good faith and if it adequately protected the interests of both the employer and the employees. The fairness of the agreement was assessed based on its alignment with the principles of the Fair Work Act 2009 and the broader industrial relations framework.

The Fair Work Commission found that the proposed agreement met all the legal requirements and was fair and reasonable. The commission noted that the agreement had been negotiated in good faith, and all provisions were in compliance with the applicable laws. The agreement was considered to be beneficial for both parties, providing a balanced approach to the interests of the employer and the employees. The commission approved the enterprise agreement, paving the way for its implementation.

The final order of the commission was to approve the Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2019-2023, effective from the date of the decision. This approval allows the agreement to be used as the basis for employment terms and conditions between the company and its employees for the specified period.

Orders