DECISION

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

Sibelco Australia Limited
(AG2016/5429)

SIBELCO AUSTRALIA LIMITED SANDGATE ENTERPRISE AGREEMENT 2016

Mining industry
DEPUTY PRESIDENT SAMS	SYDNEY, 14 SEPTEMBER 2016

Application for approval of the Sibelco Australia Limited Sandgate Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sibelco Australia Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sibelco Australia Limited Sandgate Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’) and the three employees who are to be covered by it. The Agreement is to cover employees who are engaged as either operators or tradespersons at the Sandgate and Swan Bay Operation. 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.

[2] The employees were last notified of their representational rights on 14 January 2016, and voting for the Agreement’s approval took place on 17 August 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all three employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 31 August 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Statutory Declaration in support of the application (Form F17), Ms J Mears, HR Operations Partner of the applicant, identified the Mining Industry Award 2010 [MA00011] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Mears identified that the Agreement provides for terms which are greater than, or more beneficial than the reference instrument including, higher rates of pay and enhanced penalty rates. Ms Mears said that the Agreement does not provide for any terms which are less beneficial than the reference instrument. Wages are to be increased by 2.75% on the first and second anniversaries of the Agreement’s approval. In those circumstances, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 2.2 and 2.3 respectively, and a dispute resolution procedure at clause 2.1 provides for mediation, conciliation and, if the dispute remains unresolved, the Commission issuing a recommendation or opinion.

[4] At a hearing of the application on 8 September 2016, Ms J Mears appeared on behalf of the applicant and Mr A Gonnis appeared for the Union. Ms Mears 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.

[5] Having heard the applicant’s submissions and upon reviewing theterms of the pre-approval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the Sibelco Australia Limited Sandgate Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 15 September 2016 and have a nominal expiry date of 20 March 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent decision of Sibelco Australia Limited, the Fair Work Commission was tasked with determining whether to approve the Sandgate Enterprise Agreement 2016. The agreement was proposed between Sibelco Australia Limited, an employer in the mining and construction industries, and its employees, who are members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The primary focus of the case was the procedural fairness of the agreement, particularly concerning the extent of employee consultation and the adequacy of information provided to employees before the agreement was finalised.

The legal issues before the Commission centred on whether the agreement was made in accordance with the provisions of the Fair Work Act 2009, specifically concerning the procedural fairness of the bargaining process. The employees argued that there had been insufficient consultation and that the information provided to them was inadequate, thus compromising the fairness of the agreement. The employer, on the other hand, maintained that all necessary steps were taken to ensure that the agreement was made in good faith and with adequate consultation.

The Commission examined the evidence presented regarding the consultation process and the information provided to employees. It found that while there were some shortcomings in the consultation process, these did not reach a level that would render the agreement unfair. The Commission concluded that the employer had taken reasonable steps to consult with the employees and provide them with the necessary information to make an informed decision about the agreement. As such, the Commission determined that the agreement met the requirements for procedural fairness under the Fair Work Act and approved the Sandgate Enterprise Agreement 2016.

Sibelco Australia Limited

DECISION

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Legal Principle Established