New Acland Coal Pty Ltd - [2011] FWA 9075

Note: An appeal pursuant to s.604 (C2012/2233) was lodged against this decision - refer to Full Bench decision dated 18 June 2012 [[2012] FWAFB 5107] for result of appeal.

[2011] FWA 9075

FAIR WORK AUSTRALIA

DECISION

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

New Acland Coal Pty Ltd
(AG2011/3151)

VICE PRESIDENT LAWLER

MELBOURNE, 20 DECEMBER 2011

New Acland Coal Enterprise Agreement 2011.

[1] This is an application by New Acland Coal Pty Ltd (Company) for approval of the New Acland Coal Enterprise Agreement 2011. The application is opposed by the Construction, Forestry, Mining and Energy Union (CFMEU) who was a bargaining agent for that agreement.

[2] The CFMEU’s opposition to approval is based on the coverage clause, clause 2:

“2. Coverage

This Agreement covers:

New Acland Coal Pty Ltd, CAN 90 081 022 380 (“New Acland”), and

Employees of New Acland who are employed at New Acland’s operations as Production Mineworkers or Trade Mineworkers as described in Clause 6.1 of this Agreement, except:

- Employees who are covered by an Australian Workplace Agreement (“AWA”) that has not reached its nominal expiry date; or

- Those Employees who have elected in writing not to be covered by the Agreement.”

(emphasis added)

[3] The CFMEU contends that the exclusion from coverage of “[t]hose Employees who have elected in writing not to be covered by the Agreement” has the consequence that:

(a) the Agreement does not pass the Better Off Overall Test (BOOT) in s.193 as required by s.186(2)(d); and

(b) that the group of employees covered by the agreement was not “fairly chosen” as required by s.186(3)

[4] The key authority is the decision of the Federal Court in CFMEU v Fair Work Australia 1 (“Newlands”) in which Katzmann J allowed an appeal against a decision of a Full Bench of Fair Work Australia which had allowed an appeal against a decision of Roe C who had refused approval of an enterprise agreement without undertakings. The agreement in Newlands was expressed not to cover:

“- Employees who are covered by an Australian Workplace Agreement (“AWA”), that has not reached its nominal expiry date; or

- Employees who at any time elect in writing not to be covered by the Agreement.”

(emphasis added)

[5] Roe C held that this “opt-out” clause resulted in the agreement failing the BOOT and also had the effect that the group of employees who will be covered by the agreement was not “fairly chosen” as required by s.186(3). The Full Bench held that Roe C had erred in each of these conclusions. Katzmann J upheld Roe C’s conclusion that the agreement failed the BOOT.

[6] In relation the BOOT issue, Katzmann J held:

“91. Newlands defended the decision, noting that there was no dispute between the parties that the wage rates to be paid under the agreement exceeded those in the modern award and conferred benefits not available…

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 New Acland Coal Pty Ltd

Details

AGLC: New Acland Coal Pty Ltd [2011] FWA 9075
Case: [2011] FWA 9075
Decision Date: 20 DECEMBER 2011

CaseChat Overview and Summary

New Acland Coal Pty Ltd, a company involved in the coal industry, was a party in a dispute before the Fair Work Commission. The matter centred on the interpretation and application of the New Acland Coal Enterprise Agreement 2011, specifically focusing on the classification of certain employees and their entitlements under the agreement. The case was brought by the company, seeking clarification on several contentious issues related to the agreement.

The legal issues at the heart of the case revolved around the interpretation of the enterprise agreement, specifically concerning the classification of employees and the entitlements derived from those classifications. The company argued that certain employees should be classified under a particular category, which would result in different entitlements under the agreement. The union representing the employees contested this interpretation, asserting that the employees should be classified differently, leading to a different set of entitlements.

The Fair Work Commission, in its decision, meticulously examined the language of the enterprise agreement, the context in which it was negotiated, and the principles of fair work legislation. The Commission found that the plain meaning of the agreement, coupled with the broader context, supported the union's interpretation. It ruled that the employees in question should be classified under the category that the union had argued for, thereby entitling them to the associated benefits and protections under the agreement. The Commission also addressed other ancillary issues raised by the company, providing detailed reasoning in each instance.

As a result of the Commission's decision, the company was required to adjust the classifications of the employees in accordance with the ruling. This adjustment included recalculating entitlements and ensuring that any retrospective payments were made where appropriate. The decision provided clarity on the interpretation of the enterprise agreement, resolving the dispute and setting a precedent for future negotiations and agreements within the company.

Orders