Red Rock Recruitment Pty Ltd

[2023] FWC 1474

[2023] FWC 1474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Red Rock Recruitment Pty Ltd

(AG2023/1546)

COMMISSIONER HUNT BRISBANE, 22 JUNE 2023

Application for approval of the Red Rock Black Coal Mining Greenfield Agreement 2023

1. Red Rock Recruitment Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Red Rock Black Coal Mining Greenfield Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made as a purported greenfields agreement.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) requested application documents in respect of the application. The documents have been provided to the CFMMEU. 

1. Section 182 of the Act provides for when an enterprise agreement is made.  Relevant sections are reproduced below:

“Greenfields agreement

(3)       A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

(4)       [Greenfields agreement not made under s 182(3)]

If:

(a)   a proposed single-enterprise agreement is a greenfields agreement that has not been made under subsection (3); and

(b)   there has been a notified negotiation period for the agreement; and

(c)   the notified negotiation period has ended; and

(d)   the employer or employers that were bargaining representatives for the agreement (the relevant employer or employers) gave each of the employee organisations that were bargaining representatives for the agreement a reasonable opportunity to sign the agreement; and

(e)   the relevant employer or employers apply to the FWC for approval of the agreement;

the agreement is taken to have been made:

(f)by the relevant employer or employers with each of the employee oganisations that were bargaining representatives for the agreement; and

(g)when the application is made to the FWC for approval of the agreement.”

1. Certain material must accompany such an application made under s.182(4), none of which was provided.

1. On 8 June 2023, my chambers sent correspondence notifying my concerns, namely that the Agreement has not been made with any employee organisation as required for the making of a greenfields agreement. Clause 1.2 of the Agreement states that the Agreement is made between the Employer and employees.  It does not nominate an employee organisation.  The signature page providing a space for an employee organisation to sign is unsigned.

1. The Employer did not provide any details of any employee organisation as required at Question 4.1 of the Form F19 to seek approval of a greenfields agreement.

1. I invited the Employer to provide its view in respect to my concerns, and offered to convene a telephone conference if the Employer thought it would be beneficial.

1. I did not receive any response from the Employer.  I provided the Employer until 20 June 2023 to provide a response, advising that if no response is provided, I will likely dismiss the application. The Employer did not respond, nor has it sought an extension to provide further information in respect of its application.

1. Taking into account clause 1.2 of the Agreement and the unsigned signature page, I am not satisfied that the Agreement has been made pursuant to s.182(3) of the Act as it is has not been made with an employee organisation.

1. I cannot be satisfied that the application has been made pursuant to s.182(4) of the Act.

1. Accordingly, the application must be dismissed.  An Order to this effect will be issued with this decision.

COMMISSIONER

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