Newlands Coal Pty Ltd - [2010] FWA 4811

[2010] FWA 4811

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

Newlands Coal Pty Ltd
(AG2010/9568)

Coal industry
COMMISSIONER ROE	MELBOURNE, 29 JUNE 2010

Application for approval of the Newlands Coal Surface Operations Enterprise Agreement 2010 – validity of clause which allows individual employees to “opt out” of agreement – application refused unless further undertaking provided.

[1] An application has been made for approval of an Enterprise Agreement known as the Newlands Coal Surface Operations Enterprise Agreement 2010 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). Section 185 is in Part 2–4 of the Act which provides for the making of Enterprise Agreements between an employer and their employees who are employed at the time the agreement is made and who will be covered by the agreement. The application has been made by Newlands Coal Pty Ltd (the Applicant). The Agreement is a single-Enterprise Agreement. The Agreement will cover 154 employees. 109 employees cast a valid vote and 101 of them voted in favour of the Agreement.

[2] The application for approval was received by Fair Work Australia on 17 May 2010. On 20 May 2010 my Associate wrote to Mr Graeme Weeks, Operations Manager of Newlands Coal Pty Ltd raising some concerns. Mr Weeks replied on 27 May 2010 and there was further correspondence from me on 7 June 2010 and from Mr Weeks on 18 June 2010. A hearing was held on 24 June 2010. At the hearing on 24 June 2010 I granted leave for Mr I Humphreys for the Applicant and Mr A Slevin for the CFMEU to appear.

[3] Save for one matter which is dealt with below I am satisfied that each of the requirements of Sections 186, 187 and 188 of the Act as are relevant to the application for approval have been met.

[4] The Construction, Forestry, Mining and Energy Union (“CFMEU”) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (“AMWU”) being bargaining representatives for the Agreement have given notice under Section 183 of the Act that they want the Agreement to cover them. As required by Section 201(2) I note that the Agreement will cover those two organisations if it is approved.

[5] I have received from the CFMEU and from the Applicant, 31 conditional termination applications in respect to individual agreements (AWAs and ITEAs) which have passed their nominal expiry dates. There were originally 35 applications but 4 employees revoked their notices prior to the date of application for approval of the Agreement. Pursuant to Schedule 3 Item 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 I have examined these applications and they are in order and, in the event that the Agreement is approved, the Agreement will apply to these 31 employees in lieu of the individual agreements.

The “opt out” provisions in the Agreement

[6] The issue of concern in this…

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 Newlands Coal Pty Ltd

Details

AGLC: Newlands Coal Pty Ltd [2010] FWA 4811
Case: [2010] FWA 4811
Decision Date: 29 JUNE 2010

CaseChat Overview and Summary

Newlands Coal Pty Ltd was the subject of an application before the Fair Work Commission regarding the approval of the Newlands Coal Surface Operations Enterprise Agreement 2010. The dispute centred around the validity of a clause that allowed individual employees to "opt out" of the agreement. The applicant, Newlands Coal, sought approval of the agreement, while the objector argued that the opt-out clause was invalid. The Fair Work Commission was tasked with determining the validity of the opt-out clause in the enterprise agreement.

The primary legal issue before the Commission was whether the opt-out clause in the agreement was valid. The objector contended that the clause contravened the statutory requirement for enterprise agreements to provide for the protection of employees. The applicant, Newlands Coal, argued that the clause was necessary to accommodate individual employee circumstances and did not undermine the overall protections afforded by the agreement. The Commission had to consider whether the opt-out clause was consistent with the Fair Work Act and whether it provided sufficient protections for employees.

In its decision, the Fair Work Commission found that while the opt-out clause did not invalidate the entire agreement, it did render the agreement invalid in its current form. The Commission held that the clause did not adequately protect employees who chose to opt out, as it allowed for the possibility of less favourable terms and conditions. The Commission concluded that the opt-out clause was inconsistent with the statutory requirement for enterprise agreements to provide for the protection of employees. Consequently, the application for approval of the agreement was refused unless the applicant provided a further undertaking to address the concerns regarding the opt-out clause.

The Fair Work Commission ordered that the application for approval of the Newlands Coal Surface Operations Enterprise Agreement 2010 be refused unless the applicant provided a further undertaking to address the concerns regarding the opt-out clause. The Commission required Newlands Coal to submit an amended agreement that complied with the statutory requirements for enterprise agreements, ensuring adequate protection for all employees. This decision underscored the importance of safeguarding employee protections in enterprise agreements and the need for careful consideration of clauses that may potentially undermine these protections.

Orders