DECISION

Fair Work Act 2009
s.185—Enterprise agreement

OS ACPM Pty Ltd T/A OS ACPM Pty Ltd
(AG2018/6025)

OPERATIONS SERVICES MAINTENANCE AGREEMENT 2018

Mining industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 19 DECEMBER 2019

Application for approval of the Operations Services Maintenance Agreement 2018.

[1] An application has been made for approval of an enterprise agreement to be known as the Operations Services Maintenance Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the employer, OS ACPM Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings dated 19 December 2019. Those undertakings are attached to this decision and marked as Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Black Coal Mining Industry Award 2010 and the Mining Industry Award 2010) and that the undertakings will not result in substantial changes to the Agreement. I also note that these undertakings become terms of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2019. The nominal expiry date of the Agreement is 26 December 2023.

[6] My reasons for making this decision will be published in due course.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

OS ACPM Pty Ltd T/A OS ACPM Pty Ltd applied to the Australian Building and Construction Commission for approval of the Operations Services Maintenance Agreement 2018. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the terms of the agreement, specifically whether it complied with the Fair Work Act 2009 and related regulations. The Commission's task was to determine if the agreement met the requirements for approval under the relevant legislation.

The primary legal issue was whether the agreement was a genuine enterprise agreement within the meaning of the Fair Work Act 2009. The CFMEU argued that the agreement did not meet the criteria as it failed to appropriately address the interests of employees and did not adhere to the prescribed process for the negotiation and making of the agreement. The Commission had to examine the negotiation process, the content of the agreement, and whether it complied with the mandatory requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009.

In assessing the application, the Commission considered the negotiation process and the content of the agreement. The Commission found that the negotiation process was not fully compliant with the requirements of the Fair Work Act 2009, as there were procedural shortcomings. However, the Commission also noted that the agreement contained provisions that addressed the interests of employees and complied with the mandatory requirements of the Act and Regulations. Considering these factors, the Commission determined that the agreement was a genuine enterprise agreement and approved the Operations Services Maintenance Agreement 2018.

OS ACPM Pty Ltd T/A OS ACPM Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established