Peabody Energy Australia Coal Pty Limited
[2023] FWC 1664
•10 JULY 2023
| [2023] FWC 1664 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Peabody Energy Australia Coal Pty Limited
(AG2023/969)
| COMMISSIONER WILSON | MELBOURNE, 10 JULY 2023 |
Application for approval of the Peabody Energy Australia Coal (Metropolitan) Deputy Salary Package Agreement 2023
An application has been made for approval of an enterprise agreement known as the Peabody Energy Australia Coal (Metropolitan) Deputy Salary Package Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Peabody Energy Australia Coal Pty Limited (Peabody or the Applicant). The Agreement is a single enterprise agreement.
Following preliminary consideration of the Agreement in the usual course, my Chambers sent correspondence to the parties named in the initiating application setting out the concerns I held in relation to the Agreement in respect of mandatory terms and the Better Off Overall Test (BOOT).
Peabody provided a response to the matters set out in the correspondence including two sets of undertaking addressing the concerns.
The Construction, Forestry, Maritime, Mining and Energy Union (MEU) is a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it, although as will be made clear, it objects to an undertaking proposed to the Fair Work Commission (the Commission) by Peabody.
SCOPE OF THIS DECISION
This decision deals not only with the MEU’s objection to Peabody’s proposed undertakings but also with the statutory requirements for approval of an enterprise agreement. The statutory requirements for approval of an enterprise agreement are within the Act’s Part 2 – 4, Enterprise Agreements and in particular:
Subdivision B – Approval of enterprise agreements by FWC (s.186)
Subdivision C – Better off overall test (s.193)
Subdivision E – Approval requirements relating to particular kinds of employees (s.196)
BACKGROUND
As part of its consideration process, the Commission wrote to Peabody expressing two matters of concern, inviting either the provision of submissions that would persuade the Commission the expressed concern does not require further consideration, or the provision of an undertaking that would ensure the concern is removed. The matters identified to Peabody as concerns were these:
Mandatory terms
Definition of shiftworker – Clause 18.1 of the Agreement provides that employees who work a ‘weekend roster’ are entitled to 6 weeks annual leave. Clause 24.2(b) of the Award provides that an employee who is a 7-day roster employee; or works a roster which requires ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays is entitled to 6 weeks of annual leave. The Agreement doesn’t appear to define a weekend roster and does not appear to define a shiftworker for the purpose of the NES. The Commissioner invites an undertaking.
BOOT
Casual employees – Clause 23 appears to be the only reference to casual employees in the Agreement, and the Clause appears to be at odds with Clause 7.1 and other clauses. The Commissioner invites an undertaking to remove the anomaly.
Peabody responded to the identified matters on 26 April 2023 providing an undertaking to address both concerns as well as brief submissions on the definition of a shiftworker matter. The undertaking was in the following form:
“1. Clause 18.1 Accrual is updated to include the following sentence at the end of the clause:
‘For the purpose of the sixth week of annual leave, the weekend roster requires employees to work ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays’.
2. Clause 23 – Compassionate Leave is replaced with:
‘Employees are entitled to compassionate leave in accordance with the NES. An employee will be paid projected roster earnings.
In addition to the NES, employees who are notified of circumstances giving rise to grounds for compassionate leave during a shift are entitled to receive full payment for the entire shift.”[1]
On 28 April 2023 the MEU provided submissions which raised concerns in relation to the Clause 18.1 undertaking with the basis of the MEU concern being an inconsistency with s.114 of the Act. It submitted that:
“[t]he Full Federal Court Decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 held that a requirement, including as expressed through an employer issuing a roster to its workforce, and through a contractual provision advising they may be required to work public holidays as rostered, was not and could not be a reasonable request for the purposes of s 114 of the FW Act. As such the undertaking in its current form is inconsistent with s 114 of the FW Act and the Commission should not accept the undertaking.”[2]
The judgement in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd[3] (OS MCAP) was handed down on 28 March 2023.
As a result of the MEU’s objection, I requested the parties explore between themselves whether agreement could be reached between themselves about a suitable undertaking; however they were not able to reach agreement and the matter was listed for hearing.
On 23 June 2023, a hearing was conducted. Peabody was represented by Mr Dan Williams, solicitor from Minter Ellison and the MEU was represented by Mr Adam Jacka, National Legal Officer. Permission for Peabody to be represented by a lawyer was granted by me pursuant to s.596(2)(a) of the Act, with me being satisfied that such representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. As the MEU did not object to Peabody’s legal representation, I considered it appropriate to exercise my discretion on the subject.
CONSIDERATION
As set out above, this decision deals with two different considerations; first, the MEU’s objection to Peabody’s proposed undertakings, and second whether the statutory requirements for approval of an enterprise agreement generally have been met.
Final versions of undertakings
The precise undertakings to be considered by the Commission have been the subject of some development over the course of the matter, with several versions proposed by each of Peabody and the MEU. In the hearing, which took place on 23 June 2023, Peabody confirmed that it preferred undertakings given to the Commission dated 9 May 2023, and that if for some reason they were found to be unacceptable then those given in its written submissions (dated 16 June 2023) should be accepted.[4] It should be noted though that the undertakings dated 9 May 2023, and earlier on 26 April 2023 did not deal with the later issue identified by the MEU about Clause 21.1.
The undertakings proposed by Peabody dated 9 May 2023 and 16 June 2023 have the following content:
9 May 2023 Undertakings
“I, Andrew Robertson, Director Operations Human Resources Australia, have the authority given to me by Peabody Energy Australia Coal Pty Ltd to give the following undertakings with respect to the Peabody Energy Australia Coal (Metropolitan) Deputy Salary Package Agreement 2023 ("the Agreement"):
1. The Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
2. Clause 18.1 Accrual is updated to include the following sentence at the end of the clause:
'For the purpose of the sixth week of annual leave, the weekend roster requires employees to work ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays'.
3. Clause 23 – Compassionate Leave is replaced with:
'Employees are entitled to compassionate leave in accordance with the NES. An employee will be paid projected roster earnings.
In addition to the NES, employees who are notified of circumstances giving rise to grounds for compassionate leave during a shift are entitled to receive full payment for the entire shift.'”[5]
23 June 2023 Outline of Submissions
“10. Notwithstanding its position that the NES Undertaking is sufficient to address all of the issues raised by the MEU, in the alternative, Peabody is prepared to offer the following additional specific undertakings in relation to clauses 18.1 and 21.1 of the Agreement:
Clause 18.1 Accrual is updated to include the following sentence at the end of the clause:
'Subject to the NES, for the purpose of the sixth week of annual leave, the weekend roster requires employees to work ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays'.
Clause 21.1 Recognised Public Holidays is updated to include the following sentence:
'Subject to the NES, employees rostered to work on a permanent weekend roster will be required to work when a public holiday falls on a rostered work day, and will be paid in accordance with clause 20.2 below.'”[6]
The MEU proposed two sets of undertakings for the Commission’s consideration; first in its outline of submissions on 1 June 2023; and the second shortly before the hearing on 23 June 2023:
1 June 2023 Outline of Submissions
“18. The MEU proposes the following undertaking to the Commission:
Clause 18.1 Accrual is updated to add a sentence at the end of the clause:
'Subject to the NES, for the purpose of the sixth week of annual leave, employees working the weekend roster may be required to work ordinary shifts on public holidays and will be required to work not less than 272 ordinary hours per year on Sundays'.
Clause 21.1 Public Holidays – Requirement to work Public Holiday, the first paragraph is amended to state:
‘Subject to the NES, employees rostered to work on a permanent weekend roster, may be required to work when a public holiday falls on a rostered work day, and will be paid in accordance with clause 20.2 below’.”[7]
23 June 2023 email
“Having considered the application further, including the submissions of the Applicant the Union wishes to make an amendment to the MEU’s proposed undertaking. We propose the following with the amendments marked:
Clause 18.1 Accrual is updated to add a sentence at the end of the clause:
'Subject to the NES, for the purpose of the sixth week of annual leave, employees working the weekend roster may be required to work ordinary shifts on public holidays and will be required to work not less than 272 ordinary hours per year on Sundays. Employees may refuse to work the Public Holiday if the refusal is reasonable or if the requirement to work the public holiday is unreasonable'.
Clause 21.1 Public Holidays – Requirement to work Public Holiday, the first paragraph is amended to state:
‘Subject to the NES, employees rostered to work on a permanent weekend roster, may be required to work when a public holiday falls on a rostered work day, and will be paid in accordance with clause 21.2 below. Employees may refuse to work the Public Holiday if the refusal is reasonable or if the requirement to work the public holiday is unreasonable'.”[8] (underlining in original)
MEU objections
In this matter the Commission’s concern, as initially expressed to Peabody and bargaining representatives was that it was not clear the Agreement defined a shiftworker for the purposes of the NES as required by s.87(1)(b). Peabody’s response provided such a definition, however the response properly identified that weekend roster employees were the intended target of the additional leave and that necessarily such employees would be required “to work ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays”. The MEU then objected to the undertaking as being inconsistent with OS MCAP, as well as identifying that the same problem emerged from Clause 21.1, which is part of the Public Holidays clause.
Before approving an enterprise agreement, the Commission is required to be satisfied that “the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.)” (s.186(2)(c). Section 55 provides that an enterprise agreement “must not exclude the National Employment Standards or any provision of the National Employment Standards”.
It has been held repeatedly by the Full Bench that exclusion of the National Employment Standards (NES) will occur in instances in which employees do not receive in full or in part a benefit provided for by the NES and that regard must be had during the course of consideration of an agreement’s approval as to whether the agreement’s terms have the effect of excluding the NES. The Full Bench expressed the consideration in this manner in Re: Canavan Building Pty Ltd[9]:
“[36] Section 55(1) of the Act relevantly provides that an enterprise agreement “must not exclude” the NES or any provision thereof. It is not necessary that an exclusion for the purpose of s.55(1) must be constituted by a provision in the agreement ousting the operation of an NES provision in express terms. On the ordinary meaning of the language used in s.55(1), we consider that if the provisions of an agreement would in their operation result in an outcome whereby employees do not receive (in full or at all) a benefit provided for by the NES, that constitutes a prohibited exclusion of the NES. That was the approach taken by the Full Bench in Hull-Moody. The correctness of that approach is also confirmed by the Explanatory Memorandum for the Fair Work Bill 2009 as follows:
“209. This prohibition extends both to statements that purport to exclude the operation of the NES or a part of it, and to provisions that purport to provide lesser entitlements than those provided by the NES. For example, a clause in an enterprise agreement that purported to provide three weeks' annual leave would be contrary to subclause 55(1). Such a clause would be inoperative (clause 56).”” (citations omitted)
The relevant part of the NES in question in this decision is within Division 10 – Public Holidays, with s.114 comprising the following:
“Division 10—Public holidays
114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.”
The Full Court has found that s.114 provides an entitlement to absence. Whereas the employer may request work to be performed on a public holiday an employee had a choice as to whether they did or did not work in response to the request. The facts in consideration in OS MCAP included:
Contracts that stipulated an employee “may be required to work on public holidays” with rosters provided to employees when they first commenced employment which identified all shifts including public holidays they would be required to work.[10]
After leave applications for Christmas Day or Boxing Day were received meetings were convened in which employees were told the employer could accommodate six employees for each roster panel being absent from work on Christmas Day and Boxing Day.[11]
A random selection process would be used to select those who could take the Christmas/Boxing Day leave, with employees being told they “will not be able to have XMAS off again for 2 yrs”.[12]
Later employees were informed that the employer could increase the employee leave allocations for Christmas Day and Boxing Day with employees being informed they could be considered for leave after discussion with their line leader if they had “special circumstances” or needed to take time off.[13]
One employee did not make any request to be absent on Christmas Day or Boxing Day since he understood it would be rejected.[14]
The employer never made a request of its employees whether they would be willing to work on Christmas Day or Boxing Day or that the employees had a right under s.114 or otherwise to refuse, if the refusal was reasonable, to work on Christmas Day or Boxing Day.[15]
Holding about s.114 that the “intended mischief the provision confronts is the inherent power imbalance that exists between employers and employees”[16] the Full Court held so far as is relevant that s.114(1) entitles an employee to be absent on a public holiday unless one of the exceptions in s.114(2) – (3) apply:
“30 Section 114 comprises one of the suite of NES which provide specific minimum entitlement protections for employees. It is clear from s 114(1) that the prima facie position is that an employee is entitled to be absent from his or her employment for a day or part day that is a public holiday. Not only is the employee entitled to be absent but also is entitled to be paid for that day of absence: s 116. The NES comprise standards which apply to the employment of employees, which “cannot be displaced”, regardless of contractual compulsion or where, as recognised under the FW Act, an enterprise agreement includes terms of the kind referred to in s 55(5): s 61(1) of the FW Act. Furthermore, in circumstances where those provisions are contravened, an employer can be the subject of civil penalties by operation of s 44.
31 An employee is entitled to be absent from work on a public holiday, unless the exceptions under s 114(2)–(3) apply: An employer has “request[ed]” the employee to work and the request is reasonable (s 114(2), 3(a)) or the employee’s refusal is not reasonable (s 114(3)(b)).
32 The ordinary meaning of the words “request” and “require” fortify the Union’s position: To “request” means “to ask or beg”, “especially politely or formally”. To “require” is to demand or make obligatory. The primary judge was correct to recognise the fundamental difference between the two: at J[82]. We are of the view that to read “request” as comprising a demand or making something obligatory is not consistent with what was intended by the legislation, namely that there is a choice: The employee may refuse an unreasonable request or, even though the request is reasonable, the individual circumstances of the employee may nonetheless allow the employee to refuse a reasonable request.”[17]
As to the factors in s.114(4) guiding determination of whether a request is reasonable, the Full Court found they assume there is first a request to work:
“36 These factors assume that there will first be a request, in the ordinary sense such that it is known to the employee that he or she can refuse the request. If the term was read, as OS urges, as a requirement, there would be nothing to precipitate the capacity to refuse. The use of the word “request” indicates that there is a choice and it validates it. This interpretation is consistent with the nature of other protections under the NES. Such protections only achieve their effect if they are known to exist by employees. A request impliedly signals to an employee that he or she has a right to take a paid public holiday and to refuse a request. As mandated under ss 124 and 125 of the FW Act, employers are required to provide employees with an explanatory statement as to the nature of employees’ protections under the NES. Making a “request” in the ordinary sense provides an opportunity for refusal.”[18]
In this matter the Commission’s concern, as initially expressed to Peabody and bargaining representatives was that it was not clear the Agreement defined a shiftworker for the purposes of the NES as required by s.87(1)(b). Peabody’s response provided such a definition, however the response properly identified that weekend roster employees were the intended target of the additional leave and that necessarily such employees would be required “to work ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays”. The MEU then objected to the undertaking as being inconsistent with OS MCAP, as well as identifying that the same problem emerged from Clause 21.1, which is part of the Public Holidays clause.
The MEU submits that:
1.Peabody’s proposed Clause 18.1 undertaking is inconsistent with s.114 of the Act;
2.Clause 21.1 of the Agreement is inconsistent with s.114 of the Act; and
3.The undertakings proposed by the MEU resolves the concerns raised by me in relation to a weekend roster employee’s entitlement to six weeks annual leave and the terms of the Agreement that are inconsistent with s.114 of the Act.
The MEU submitted that their first proposed undertaking ensures that employees will work 272 ordinary hours on Sunday which addresses the concerns raised by me, and deals with the OS MCAP decision in relation to s.114 of the Act concerning a reasonable request to work public holidays. On the day of the hearing the MEU provided an amendment to their proposed undertaking (amendments underlined):
“Clause 18.1 Accrual is updated to add a sentence at the end of the clause:
'Subject to the NES, for the purpose of the sixth week of annual leave, employees working the weekend roster may be required to work ordinary shifts on public holidays and will be required to work not less than 272 ordinary hours per year on Sundays. Employees may refuse to work the Public Holiday if the refusal is reasonable or if the requirement to work the public holiday is unreasonable'.
Clause 21.1 Public Holidays – Requirement to work Public Holiday, the first paragraph is amended to state:
‘Subject to the NES, employees rostered to work on a permanent weekend roster, may be required to work when a public holiday falls on a rostered work day, and will be paid in accordance with clause 21.2 below. Employees may refuse to work the Public Holiday if the refusal is reasonable or if the requirement to work the public holiday is unreasonable'’.” (underlining in original)
The MEU submits “that the amended undertaking provides employees with clear wording that they have a right under s114 an NES provision or the enterprise agreement to refuse to wo[r]k a public holiday. Further, the proposed undertaking does not prevent Peabody from having a weekend roster which includes public holidays and a requirement that the weekend roster employee works not less than 272 hours per year on a Sunday. The amended undertaking provides employees with an understanding that they may be rostered to work on a public holiday subject to the entitlement that the employee may choose not to work on a public holiday if the refusal is unreasonable or the requirement to work in unreasonable. The employee understands that there are circumstances where being rostered to work on a public holiday may be refused.”[19]
Peabody’s submissions acknowledge the effect of the NES on the Agreement and the Undertakings in question:
“3. The effect of the NES Undertaking is that both clauses would be read and interpreted in conjunction with s 114 of the Fair Work Act 2009 (Cth) which requires Peabody to first make a request to employees to work on a public holiday which the employee can refuse if Peabody's request is unreasonable, or the employee's refusal is reasonable.
4. Additionally, the effect of s 55(1) of the FW Act is that the Agreement must not exclude a term of the National Employment Standards (NES). By virtue of section 56 of the FW Act, a term of the enterprise agreement has no effect to the extent that it contravenes section 55 of the FW Act.
5. It follows that neither clause 18.1 or 21.1 could allow Peabody to require an employee to work on a public holiday if the requirements of s 114 of the FW Act are not met.”[20]
Even so, it does not accept the law as set out in OS MCAP to be settled, with a possibility being that the High Court decides differently.[21]
Peabody submits that its original Clause 18.1 undertaking “was provided to clarify the entitlement to six weeks' annual leave and adopts the wording from clause 24.2(b) of the Black Coal Mining Industry Award 2020”. It also does not accept that the “undertaking displaces an NES entitlement or deprives the employees of a choice to not work on a public holiday which they are rostered to work”.[22]
While submitting that “Peabody has no intention of unilaterally requiring employees to work on public holidays without first making a request. To do so would be a breach of the NES” it is not prepared to provide a formal undertaking to the same effect.[23]
Peabody also submitted that its proposed undertaking did not exclude the NES, but rather embraced it.[24]
Undertakings may be accepted by the Commission on the basis articulated in s.190:
“190 FWC may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.”
The concerns held by me are referred to above. They started with a concern that the Agreement did not define a shiftworker for the purposes of the NES and moved beyond that as a result of the MEU’s response.
The submissions made by both parties, together with undertakings proposed by each have been useful in assisting my determination of the matter.
Apparent from Peabody’s submissions is that it accepts compliance with the law as it stands now, but that it does not accept the law will not change at some future time, and that if it does change it wishes to ensure it can work under that change. Such desire plainly drives what Peabody is prepared to undertake to the Commission.
The MEU plainly enough seeks that its members are provided with their entitlements as they stand under the law as set out in OS MCAP.
Peabody is content enough to say publicly that “Peabody has no intention of unilaterally requiring employees to work on public holidays without first making a request. To do so would be a breach of the NES” and that the Commission may be assured it “will meet its obligations under the enterprise agreement and the NES”,[25] but it is not prepared to make that statement an undertaking for the purposes of s.190.
The purpose of undertakings provided under s.190 is set out within the section; first that their consideration arises when the Commission “has a concern that the agreement does not meet the requirements set out in sections 186 and 187”, and second that the Commission is satisfied the undertaking section meets the concern (as well as being satisfied of the things set out in ss.190(3) – (5)). A concern that an enterprise agreement may not meet the requirements of s.186(2)(c) with the Commission being unable to be satisfied that “the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.)” is an important one. The NES provides statutory rights which in most cases may not be taken away by enterprise agreements, although of course there is the capacity for enterprise agreements to include ancillary, incidental or supplementary terms (s.55(4)).
Enterprise agreements by definition apply within enterprises and are used by those covered by them, such as the employees covered by this Agreement, to understand their rights and obligations. As far as is reasonably possible they should not have to research legislation or Full Court judgements in order to understand the outer limits of those rights and obligations. It is generally insufficient for a party to brush the situation away with a comment to the effect that “of course the NES cannot be excluded” or to provide an undertaking with a simple incantation that the NES will apply to the extent of any inconsistency, especially when no documented statement is given about the right or obligation which prevails.
That said, this matter is unusual in that the employer is stating unequivocally and on the record that so long as the current judicial interpretation remains, that it “has no intention of unilaterally requiring employees to work on public holidays without first making a request. To do so would be a breach of the NES”.[26]
The industrial parties are each aware of this commitment which I have no doubt will hold in the workplace. The breadth of the formal first undertaking by Peabody, that the Agreement will be read and interpreted in conjunction with the NES and that in the event of inconsistency and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency gives confidence that Peabody’s commitments will be capable of enforcement if need be.
I am therefore prepared to approve the Agreement with undertakings addressing the matter of NES inconsistency and work performed on Public Holidays.
However, I am concerned that Peabody’s preferred undertakings each state “the weekend roster requires employees to work ordinary shifts on public holidays …”. An employee covered by the Agreement, and perhaps their supervisor, would likely read the provision as them being required to work even with the NES inconsistency undertaking shown at the front of an FWC approved Agreement. Such situation would be highly undesirable.
As a result, I am prepared to accept undertakings from Peabody which are somewhat more neutrally worded, and which are not explicitly inconsistent with the NES as presently held in OS MCAP. The proposed undertakings are as follows:
“1. The Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
2. Clause 18.1 Accrual – the following sentence is inserted at the end of the clause:
'Subject to the NES, an employee will be entitled to the sixth week of annual leave if they work the weekend roster including working ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays.'
3. Clause 21.1 Recognised Public Holidays – the heading “Requirement to work Public Holidays” is deleted and the first sentence after the heading is replaced with the following sentence:
'Subject to the NES, employees rostered to work on a permanent weekend roster and who work when a public holiday falls on a rostered work day, will be paid in accordance with clause 21.2 below.'”
4. Clause 23 – Compassionate Leave is replaced with:
'Employees are entitled to compassionate leave in accordance with the NES. An employee will be paid projected roster earnings.
In addition to the NES, employees who are notified of circumstances giving rise to grounds for compassionate leave during a shift are entitled to receive full payment for the entire shift.'”
For the purposes of s.190 I am satisfied that if these undertakings are given, they meet the concerns held by me (s.190(2)) and that they are not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.
As I have not heard the views of Peabody or any bargaining representative about whether the undertakings may be given and are acceptable, I now invite such views:
From Peabody, by no later than 4 PM Thursday 13 July 2023; and
The MEU and any other bargaining representative by no later than 4 PM Tuesday 18 July 2023.
Approval generally
Should the above proposed undertakings be given by Peabody, I do not see any other reason for the Agreement not to be approved.
My findings in respect of all other matters requiring consideration are that I can be satisfied that the Agreement as amended by the above proposed Undertakings passes the better off overall test (ss.186(2)(d), 193), that each of the requirements within ss.186 and 188 as are relevant to the application for approval have been met, and that each of the matters requiring consideration under s.196 and as are relevant to this application for approval have been met.
CONCLUSION
My disposition in respect of this application is set out above.
In order to finalise the application, and consistent with the foregoing:
Peabody is directed to either provide undertakings in the form proposed above, or to express its views on them, by no later than 4 PM Thursday 13 July 2023; and
The MEU and any other bargaining representative are directed to express such views as they may hold about the proposed undertakings, or any views expressed by Peabody about them, by no later than 4 PM, Tuesday 18 July 2023.
Should any party seek to be heard on the form of the undertakings (within the confines of the determination made by me in this decision), such will be at 12.30PM Friday 21 July 2023.
COMMISSIONER
Appearances:
Mr D. Williams for the Applicant
Mr A. Jacka for the MEU
Hearing details:
2023.
Melbourne (via videoconference);
23 June.
[1] Digital Court Book (DCB), p.181.
[2] DCB, p.202.
[3] [2023] FCAFC 51.
[4] Transcript, PN 101.
[5] Email to Commission from Peabody, 10 May 2023 (omitted from DCB).
[6] DCB, p.194.
[7] DCB, p.228
[8] Email from MEU to Commission (not included in DCB).
[9] [2014] FWCFB 3202.
[10] Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, [10].
[11] Ibid, [12].
[12] Ibid, [13].
[13] Ibid, [15].
[14] Ibid, [16].
[15] Ibid, [17] – [18].
[16] Ibid, [38].
[17] Ibid.
[18] Ibid.
[19] Email from MEU to Commission (not included in DCB).
[20] DCB, p.193.
[21] DCB, p.193, [6].
[22] DCB, p.104, [7] – [8].
[23] Transcript, PN 104 – 107.
[24] Transcript, PN 57.
[25] Transcript, PN 107.
[26] Transcript, PN 107.
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