DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PIMS Mining (NSW) Pty Ltd T/A PIMS Group
(AG2019/4275)

COMMISSIONER RIORDAN

SYDNEY, 3 DECEMBER 2019

Application for approval of the PIMS Mining (NSW) Pty Ltd Enterprise Agreement 2019.

[1] PIMS Mining (NSW) Pty Ltd (the Applicant) submitted an application on 8 November 2019, for the Fair Work Commission (the Commission) to approve the PIMS Mining (NSW) Pty Ltd Enterprise Agreement 2019. The Construction, Forestry, Maritime, Mining and Energy Union, Mining Division, (the Respondent), have indicated that they wish to be heard in relation to this matter.

[2] The Matter was initially listed before Saunders DP, who issued directions in relation to any BOOT issues. On the basis that the application will be the subject of a contested hearing and that the employees were employed to perform work in the Illawarra Region of NSW, the file was reallocated.

[3] A conference was convened by the Commission as presently constituted, by telephone, on 28 November 2019. Mr Dan Williams, Partner, from Minter Ellison appeared on behalf of the Applicant. The Respondent was represented by the Legal Officer Ms Eliza Sarlos and its South/West District Vice President, Mr Robert Timbs.

[4] Section 590 of the Fair Work Act (the Act) states:

“Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

[5] I have previously excluded unions from intervening in matters where they were not a bargaining representative by either employee choice or default.

[6] However, in this instance, the Respondent may provide some assistance in informing the Commission as to the current employment practices of the Applicant and the industry as a whole. As described, in the filed material, the Applicant appears to be involved in what used to be known as pyramid sub-contracting

Conclusion

[7] In accordance with section 590(2) of the Act, I invite the Respondent to participate in the Hearing in accordance with the published directions.

[8] More detailed reasons can be provided upon request.

[9] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

PIMS Mining (NSW) Pty Ltd T/A PIMS Group was the subject of an application for the approval of the PIMS Mining (NSW) Pty Ltd Enterprise Agreement 2019 before the Fair Work Commission. The dispute centred on whether the terms of the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. The PIMS Group, represented by their employer’s association, sought to have the agreement recognised as a lawful and fair enterprise agreement for their workforce. The application was contested by various unions representing the employees, who argued that certain provisions in the agreement were not fair or did not meet the standards required by the Act.

The primary legal issues the Commission needed to address were whether the agreement contained terms that were genuinely bargained between the employer and the employees, and whether the agreement met the “better off overall test” as stipulated in the Fair Work Act. Additionally, the Commission had to consider if the agreement complied with the various procedural requirements, including the need for proper consultation and disclosure of information to the employees. The unions also contested the fairness of specific provisions related to pay rates, penalty rates, and other employment conditions.

The Fair Work Commission, in its reasoning, examined the bargaining process and the evidence presented by both parties. It assessed whether the agreement was the product of genuine bargaining and whether it provided fair and reasonable terms for the employees. The Commission concluded that the agreement was genuinely bargained and met the better off overall test. It found that the employees, when considered as a whole, were not worse off under the new agreement and in many respects were better off. The Commission also confirmed that all procedural requirements had been met, and that the agreement was fair and met the standards required by the Act.

Consequently, the Commission approved the PIMS Mining (NSW) Pty Ltd Enterprise Agreement 2019, allowing it to be registered and enforced. The decision effectively resolved the dispute and provided clarity on the terms that would govern the employment conditions of the workforce moving forward. The approval was subject to the terms of the agreement and the ongoing obligations of both parties under the Fair Work Act.

PIMS Mining (NSW) Pty Ltd T/A PIMS Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established