SCE Resources Pty Ltd T/A Steelstone

[2018] FWCA 6324

[2018] FWCA 6324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

SCE Resources Pty Ltd T/A Steelstone
(AG2018/2958)

SCE RESOURCES ENTERPRISE AGREEMENT 2017

Quarrying industry
DEPUTY PRESIDENT SAMS	SYDNEY, 12 OCTOBER 2018

Application for approval of the SCE Resources Enterprise Agreement 2017 – Agreement approved with undertakings.

[1] This ex tempore decision previously given in a hearing on 5 October 2018 determines an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by SCE Resources Pty Limited t/a Steelstone (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the SCE Resources Enterprise Agreement 2017 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’) and is to cover five employees who are engaged in operator and tradesperson duties as defined under the classifications in cl 4.1 of the Agreement. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen. I note the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) initially advised the Commission that it opposed the Agreement’s approval, but that opposition was subsequently withdrawn when the Union was satisfied that none of its members were covered by the Agreement.

[2] The employees were last notified of their representational rights on 24 January 2018, and voting for the Agreement’s approval took place on 15 June 2018. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all five of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 29 June 2018, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Warner, Divisional Manager identified the Quarrying Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Warnersaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments. The Agreement provides for higher wages of pay, higher allowances and enhanced severance entitlements. Mr Warner also referred to some terms which are less beneficial than the reference instruments; for example, some allowances are not conferred in the Agreement. The Union filed an F18, in which it raised some concerns in relation to the BOOT. In response, Mr Warner has provided two separate undertakings to address these concerns. The Union has since confirmed the undertakings address their concerns. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings are attached to the Agreement and marked as ‘Annexure A’. On balance, I am satisfied that the Agreement passes the BOOT.

[4] The Agreement provides for the mandatory flexibility and consultation terms at clauses 8.0 and 2.7 respectively, and a disputes resolution procedure at clause 7.0 provides for conciliation and consent arbitration by the Commission.

[5] At a hearing of the application on 5 October 2018,Ms Tracey Freeman appeared for the applicant and Mr P O’Brien and Ms P Parker appeared for the Union. Ms Freeman outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[6] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss180, 186, 187, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the SCE Resources Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from12 October 2018 and have a nominal expiry date of 12 October 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE500426  PR701246>