OS MCAP Pty Ltd - [2024] FWC 1335

[2024] FWC 1335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

OS MCAP Pty Ltd

(AG2023/2623)

Mining Industry

DEPUTY PRESIDENT SLEVIN

SYDNEY, 21 MAY 2024

Application for approval of the Operations Services Production Agreement

OS MCAP Pty Ltd (OS) has applied for approval of a single interest enterprise agreement known as the OS Production Enterprise Agreement (the Agreement). The application is made pursuant to s 185 of the Fair Work Act 2009 (the Act).

The Commission is required to grant an application for the approval an enterprise agreement if satisfied that the requirements in s 186 and s 187 of the Act are met.

The Mining and Energy Union (MEU) and the Australian Workers Union (AWU) were bargaining representatives for the Agreement. The unions oppose the application.

At the hearing of the application OS and the MEU sought to be legally represented. Permission to be represented was granted as s 596(2)(a) of the Act was met, the matter is sufficiently complex and legal representation would assist in the efficient conduct of the matter.

In the proceedings OS relied upon the information provided in its Form F16 Application, Form F17A declaration of Allison Chauncy, Principal Employees Relations for the BHP Group, and a statement of Ms Chauncy. The MEU relied upon witness statements from Eliza Sarlos, Senior National Legal Officer, Steven Pierce, Queensland Vice President, Richard Staker, Lead Organiser in Queensland, and Shane Wiseman who is employed by OS at Blackwater in Queensland. There was no cross examination. The AWU relied upon the content of its Form F18 declaration and adopts the submissions of the MEU.

The basis of the unions’ opposition is that the Commission cannot be satisfied the Agreement was genuinely agreed to for the purposes of meeting the requirement in s 186(2)(a).

The Evidence

Ms Chauncy described OS’s operations in broad terms and set out the steps taken in the bargaining for the Agreement, including the steps taken when the request was made for the employees to approve the Agreement by voting for it.
Ms Chauncy explained that OS is a contractor providing a range of production services to businesses across Australia that are either within the BHP Group or are owned by joint ventures to which entities in the BHP Group are party. In providing those services OS employs production technicians in mine operations across Australia, in both coal operations (in Queensland) and non-coal operations (in Western Australia and South Australia). The employees, who perform work on mine sites in Western Australia and South Australia are covered by the Mining Industry Award 2020 (MIA). Employees who perform production work in Queensland are covered by the Black Coal Mining Industry Award 2020 (BCMIA). OS also employs supervisory, technical, and management employees, who are not covered by the Agreement.

Ms Chauncy described OS initiating bargaining for an agreement to cover its production employees in August 2018.…

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.

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Details

AGLC: OS MCAP Pty Ltd [2024] FWC 1335
Case: [2024] FWC 1335
Decision Date: 21 MAY 2024

CaseChat Overview and Summary

The case of OS MCAP Pty Ltd involved an application by OS MCAP Pty Ltd for the approval of the Operations Services Production Agreement, which was opposed by the Mining and Energy Union and the Australian Workers Union. The Fair Work Commission was required to determine whether the agreement had been genuinely agreed to by the employees, as per the Fair Work Act 2009. The unions argued that the employer failed to adequately explain the terms and effects of the agreement, particularly the detrimental changes, and therefore the agreement had not been genuinely agreed to. The employer contended that it had taken reasonable steps to explain the terms and effects of the agreement. The Deputy President of the Fair Work Commission, Slevin, found that the employer had not complied with the requirement in section 180(5) of the Act to take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to the employees. The explanation provided by the employer was deficient in several aspects, including failing to adequately identify the detrimental effects of the agreement and not providing concise statements of the detriments. The Deputy President also found that the employer failed to take reasonable steps to explain the effect of several specific terms of the agreement, including those going to remuneration and hours of work. Furthermore, the employer did not provide an explanation of the effect of the agreement on the terms and conditions of employment for employees whose employment was regulated by transferring instruments. Consequently, the Deputy President was not satisfied that the agreement had been genuinely agreed to by the employees, and the application was dismissed.

Orders