OS ACPM Pty Ltd

[2025] FWCA 1855

[2025] FWCA 1855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

OS ACPM Pty Ltd

(AG2025/568)

OPERATIONS SERVICES MAINTENANCE AGREEMENT

Mining industry
DEPUTY PRESIDENT BUTLER	BRISBANE, 2 JUNE 2025

Application for approval of the Operations Services Maintenance Agreement.

1. OS ACPM Pty Ltd (“the Employer”) has applied for approval of an enterprise agreement known as the Operations Services Maintenance Agreement (“the Agreement”). The Application was made under section 185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.

This Application

1. The application was required to be filed within 14 days after it was made, in accordance with subsection 185(3) of the Fair Work Act. It was filed fifteen days after it was made. Pursuant to subsection 185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

Pre-approval requirements

1. The parties did not agree that the Employer had provided an adequate explanation to employees in relation to certain provisions of the Agreement. However, these concerns were able to be dealt with by the Employer providing the undertakings attached to this decision and discussed further below. In the circumstances I am satisfied that if there was an error in this regard, it as a minor technical or procedural error and not likely to disadvantage any employees in the circumstances.

1. It appears two employees were omitted from the roll of voters. Two votes would not have materially changed the outcome. Since the declaration was filed the applicant has clarified that neither was working within the Agreement’s scope at the time of the ballot. It has indicated that one was on secondment as a supervisor, and one was contracted to a different entity. The workers’ possible omission does not mean the Agreement was not genuinely agreed to. In an abundance of caution, I am satisfied that if this was an error, it as a minor technical or procedural error and not likely to disadvantage any employees in the circumstances.

1. It appears two employees were omitted from the roll of voters. Two votes would not have materially changed the outcome. Since the declaration was filed the applicant has clarified that neither was working within the Agreement’s scope at the time of the ballot. It has indicated that one was on secondment as a supervisor, and one was contracted to a different entity. The workers’ possible omission does not mean the Agreement was not genuinely agreed to. In an abundance of caution, I am satisfied that if this was an error, it as a minor technical or procedural error and not likely to disadvantage any employees in the circumstances.

Terms of the Agreement

1. Clause 25 of the Agreement incorporates, by reference, the consultation term set out in the Fair Work Act. The term itself does not explicitly appear in the Agreement. This appears inconsistent with section 205 of the Fair Work Act.

1. Accordingly, the Agreement does not contain a consultation term compliant with the Fair Work Act. As the Agreement was made before 26 February 2025, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement pursuant to section 205(2) of the Fair Work Act.

The National Employment Standards

1. Noting clause 3.3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

Conclusion

1. The Employer has given a written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. Each undertaking is taken to be a term of the Agreement.

1. With the undertakings now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

1. Each of the following organisations, being a bargaining representative for the agreement, has given notice under section 183 of the Fair Work Act that it wants to be covered by the Agreement:

(a) “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);

(b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;

(c) The Australian Workers’ Union; and

(d) The Mining and Energy Union.

1. In accordance with subsection 201(2) of the Fair Work Act, and relying on the organisations’ declarations, I note that the Agreement covers each of those organisations.

1. The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 2 June 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE529245  PR787842>

Annexure A