Sedgman Operations Employment Services Pty Ltd

[2019] FWCA 5664

[2019] FWCA 5664

FAIR WORK COMMISSION

DECISION

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

Sedgman Operations Employment Services Pty Ltd
(AG2019/1908)

BYERWEN ENTERPRISE AGREEMENT 2019

Coal industry
COMMISSIONER HUNT	BRISBANE, 22 AUGUST 2019

Application for approval of the Byerwen Enterprise Agreement 2019.

[1] Sedgman Operations Employment Services Pty Ltd (Sedgman) has applied for approval of an enterprise agreement known as the Byerwen Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Following allocation to me, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) wrote to my chambers and indicated that it had concerns about the content of the Agreement and wished to have its concerns heard and sought to be provided with a copy of the Form F16 Application and Form F17 Statutory Declaration of Mr Jeremy King to assist the CFMMEU in completing its submissions. Copies of the F16 and F17 were provided to the CFMMEU by my chambers.

[3] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with Sedgman, and as a result, written undertakings were made by Sedgman. Following receipt of Sedgman’s undertakings, the CFMMEU indicated that it was in the process of confirming whether it ‘was the default bargaining representative for any of these members in relation to the agreement making process for this agreement’. The CFMMEU sought to be heard in relation to the application to approve the Agreement and upon Sedgman’s proposed undertakings. I provided the CFMMEU an opportunity to confirm whether it was the default bargaining representative in respect of the Agreement and to file and serve submissions regarding the application to approve the Agreement. I also provided the employee bargaining representatives an opportunity to provide their views on Sedgman’s proposed undertakings.

[4] On 5 July 2019, the CFMMEU sent correspondence advising that it was a default bargaining representative in respect of the Agreement. I directed the CFMMEU to provide to my chambers only a list of its members that are employees of Sedgman and are to be covered by the Agreement, so that I may determine whether any of those persons had not nominated an employee bargaining representative.
[5] On 10 July 2019 the CFMMEU sent correspondence advising that contrary to its earlier position, the CFMMEU could not confirm that it was a default bargaining representative with respect to the Agreement. The CFMMEU filed and served submissions setting out its concerns regarding the Agreement.

[6] On 31 July 2019 Sedgman filed and served amended written undertakings in response to the CFMMEU’s concerns. The CFMMEU sought an opportunity to respond to Sedgman’s amended undertakings and sought to be provided with copies of material provided to relevant employees during the bargaining process which was referred to in Sedgman’s F16 and F17.

[7] I invited both the CFMMEU and the employee bargaining representatives to make submissions on Sedgman’s amended undertakings. I noted that the CFMMEU had confirmed that it was not a default bargaining representative in respect of the Agreement and that I had at my discretion elected to take the CFMMEU’s views into account regarding the Agreement. On that basis, I determined not to provide to the CFMMEU the material provided to relevant employees during the bargaining process which was referred to in Sedgman’s F16 and F17.

[8] On 5 August 2019 Sedgman filed further amended written undertakings addressing the Commission’s and the CFMMEU’s concerns. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the bargaining representatives regarding the undertakings provided by Sedgman, as well as the views of the CFMMEU. Only one of three employee bargaining representatives expressed a view on the amended undertakings and that person accepted the undertakings.

[9] On 7 August 2019 the CFMMEU filed submissions setting out its continued concerns with respect to the Agreement. However, on 8 August 2019 the CFMMEU sent further correspondence advising that it no longer objected to Sedgman’s proposed undertakings and asking that I disregard its submissions of 7 August 2019.

[10] I considered it appropriate to list this matter for ‘ehearing’ on 19 August 2019 to allow the parties a final opportunity to provide their views regarding the approval of the Agreement. Both Sedgman and the CFMMEU indicated that they did not seek to be heard further regarding the Agreement unless another party sought to be heard. None of the employee bargaining representatives sought to be heard at the ‘ehearing’.

[11] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[12] I have taken into consideration the material filed in the Commission. 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.

[13] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

[14] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 August 2019. The nominal expiry date of the Agreement is three years from approval by the Commission.

COMMISSIONER

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Annexure A: