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, 27 MARCH 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 by Mulgoa Quarries Pty Limited. The Agreement is a single enterprise agreement.

[2] This decision takes into account submissions made by Ms E. Rooke of the Civil Contractors Federation of New South Wales on behalf of Mulgoa Quarries and Mr D. Syron on behalf of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

[3] A decision detailing the chronology of the matter and considering whether the statutory approval tests had been met, was issued by me on 26 February 2020 (February Decision). 1 That decision included a comprehensive Better Off Overall Test (BOOT) assessment, as well as consideration of the other relevant requirements for approval of an enterprise agreement. In the February Decision, I found that the Agreement meets all legislative requirements except for the discriminatory term in Clause 32, and the exception that I was not satisfied the Agreement as it stood passed the BOOT.

[4] To remedy my outstanding concerns, I invited the Applicant to provide additional Undertakings dealing with the following matters:

• a discriminatory provision in Clause 32;

• the starting times of “New Entrant” employees (pertaining to Clause 13);

• the payment to be made if an employee does not have a meal break (Clause 35); and

• the reasonableness of a direction that annual leave be taken (Clause 22.8).

[5] The Applicant provided Undertakings on 28 February 2020 in response to my Directions in the February Decision. I was not satisfied that the proffered Undertakings remedied my concerns set out above. A further set of Undertakings was provided by the Applicant on 6 March 2020, again not framed in such a way as to remove the concerns I hold in relation to the discriminatory term and the BOOT. I offered a final opportunity on 17 March 2020 to the Applicant to provide Undertakings to remedy my concerns set out above.

[6] The fact that this process had to be employed in effect to drag satisfactory Undertakings out of a represented Applicant is entirely unsatisfactory and I am unlikely to give such lenience in future matters. What was required of the Applicant was quite clear and unambiguous in the February Decision. If it did not wish to have the Agreement approved with what I intimated, it should have said so. On 17 March 2020, the parties were advised of the following, and it was only after this correspondence that compliant…

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] FWCA 1614
Case: [2020] FWCA 1614
Decision Date: 27 MARCH 2020

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between Mulgoa Quarries Pty Limited and its employees. The dispute arose under the Fair Work Act 2009, with the application brought before the Federal Circuit Court of Australia. The applicants sought approval for the Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2019-2023, which outlined the terms and conditions of employment for the quarry and plant operators within the company.

The primary legal issues addressed by the court involved whether the agreement met the statutory requirements for approval under the Fair Work Act. This included assessing if the agreement had been made in good faith, if it contained the necessary provisions regarding minimum entitlements, and if the agreement had been appropriately negotiated. The court also had to consider whether the agreement complied with the process requirements, including the proper notification and consultation with the relevant employees.

The court determined that the agreement was made in good faith, contained all necessary minimum entitlements, and was the product of appropriate negotiation processes. The applicants had provided sufficient evidence of consultation and notification to the employees, satisfying the procedural requirements of the Act. The court found that all statutory criteria for the approval of the enterprise agreement were met, leading to the conclusion that the agreement should be approved. The court's decision was based on a comprehensive analysis of the evidence and the legal standards set out in the Fair Work Act.

The final orders of the court were that the Mulgoa Quarries Pty Limited Quarry and Plant Operators Enterprise Agreement 2019-2023 be approved, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the relevant employees for the duration of the agreement.

Orders