RCR Mining Technologies Pty Ltd

[2024] FWCA 3862

[2024] FWCA 3862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

RCR Mining Technologies Pty Ltd

(AG2024/3625)

RCR MINING TECHNOLOGIES PTY LTD (BUNBURY) ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 5 NOVEMBER 2024

Application for approval of the RCR Mining Technologies Pty Ltd (Bunbury) Enterprise Agreement 2023

Introduction

1. RCR Mining Technologies Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the RCR Mining Technologies Pty Ltd (Bunbury) Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 11 September 2023 and the Agreement was made on 2 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Regulation 2.06 Requirements

1. The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) Precedence Term

1. Clause 20.2 of the Agreement states that the company may reject an employee’s refusal to work on a public holiday if the company deems the employee’s rejection to be unreasonable. Section 114 of the Act provides that employees have a presumed entitlement to be absent from work on a public holiday, and that in reasonable circumstances, employers can request an employee to work on a public holiday. The section also allows for employees to reasonably refuse requests to work on public holidays. Subsections 4(a) to (h) specify matters to be taken into account in determining the reasonableness of a request and, specifically, the reasonableness of an employee’s refusal of a request. To the extent that clause 20.2 may detract from or otherwise exclude the consideration of these matters, the clause may not be consistent with s.114 of the Act.

1. Clause 26.4(b) states that a casual employee will only be remunerated for Family and Domestic Violence leave if their shifts are rostered and the employee has accepted the rostered shifts. Section 106A of the Act does not contemplate or otherwise provide for these matters and as a result the clause is more restrictive than the Act. To the extent that clause 26.4(b) is more restrictive, it may not be consistent with s.106A of the Act.

1. I note that in accordance with the NES precedence term in Clause 5.2 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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

Section 183 Bargaining Representatives

1. The Australian Workers’ Union (AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the AWU and the AMWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 November 2024. The nominal expiry date of the Agreement is 5 November 2027.

Variation

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.

1. Relevantly, it was identified that clause 19.1, which provides the definition of a shiftworker, was more restrictive than the corresponding clause in the Manufacturing and Associated Industries and Occupations Award 2020.

Pursuant to the NES, employees who are Continuous Shift Workers are entitled to accrue an additional week of annual leave per year of service. An Employee will be deemed a Continuous Shift Worker for the purposes of the Agreement and the NES, when an Employee is continuously rostered for shifts twenty-four (24) hours a day for seven days a week and regularly rostered to work on Sundays and Public Holidays.’

1. Enterprise Agreements are to define shiftworkers where those shiftworkers are defined in the relevant Modern Award (per s.196 of the Act). On 23 October 2024, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the clause as follows (indicated in underlined text):

Pursuant to the NES, employees who are Continuous Shift Workers are entitled to accrue an additional week of annual leave per year of service. An Employee will be deemed a Continuous Shift Worker for the purposes of the Agreement and the NES, when an Employee is a 7-day shiftworker who is regularly rostered to work on Sundays and public holidays.

1. I am satisfied that the issue listed in [14] above is an error, defect or irregularity within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR780950]). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 12 November 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE526653  PR780949>

ANNEXURE A