DECISION

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

Skilled Workforce Solutions (NSW) Pty Ltd
(AG2020/1427)

SKILLED WORKFORCE SOLUTIONS QLD ENTERPRISE AGREEMENT 2020

Coal industry
COMMISSIONER HUNT	BRISBANE, 19 JUNE 2020

Application for approval of the SKILLED Workforce Solutions QLD Enterprise Agreement 2020.

[1] Skilled Workforce Solutions (NSW) Pty Ltd (the Applicant/the Employer) has applied for approval of an enterprise agreement known as the SKILLED Workforce Solutions QLD Enterprise Agreement 2020 (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] Mr Steven Pierce, District Vice President of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), filed a Form F18 on behalf of the CFMMEU in relation to this Agreement stating that the CFMMEU was a bargaining representative for the agreement, and that it supported approval of the Agreement and advising the CFMMEU wanted to be covered by the Agreement.

[3] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.

[4] Mr Pierce and the CFMMEU were provided with copies of these undertakings on 15 June 2020 and given an opportunity to provide a response. The CFMMEU was advised that in the absence of any response from the bargaining representatives, the application may be determined based on the material before the Commission. The CFMMEU did not provide a response to the undertakings and did not identify any grounds on which it opposed the Agreement in its Form F18.

[5] 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.

[6] I observe that clause 6.5.3 – Termination of employment is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 June 2020. The nominal expiry date of the Agreement is 19 June 2024.

COMMISSIONER

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Annexure A.

CaseChat Overview and Summary

In the matter of Skilled Workforce Solutions (NSW) Pty Ltd, the Fair Work Commission was presented with an application for the approval of the Skilled Workforce Solutions QLD Enterprise Agreement 2020. The dispute centred around the terms and conditions of the agreement, specifically those relating to employee entitlements, working hours, and dispute resolution mechanisms. The application was brought forward by the employer, and the employees were represented by the Construction, Forestry, Maritime, Mining and Energy Union. The Fair Work Commission, as the relevant federal workplace relations tribunal, was tasked with evaluating the fairness of the agreement under the Fair Work Act 2009.

The central legal issues before the Commission involved whether the agreement complied with the statutory requirements for fairness, including the "better off overall test," and if it met the standards of procedural fairness. The Commission had to assess whether the agreement provided employees with a minimum rate of pay and conditions that were at least as good as the relevant award, and whether it included appropriate mechanisms for resolving disputes. The Commission also considered the fairness of the agreement's provisions concerning leave entitlements, overtime, and the flexibility of working hours.

In its decision, the Fair Work Commission noted that while the agreement provided for a reasonable framework of entitlements and conditions, there were areas where the provisions did not sufficiently protect the interests of the employees. The Commission highlighted that some clauses were ambiguous and could potentially be interpreted in a manner detrimental to the workforce. Despite these concerns, the Commission found that the overall benefits of the agreement, such as improved flexibility and some enhanced entitlements, met the better off overall test. The Commission approved the agreement with the condition that certain clauses be amended to ensure greater clarity and fairness. As a result, the application was approved subject to the specified changes.

Skilled Workforce Solutions (NSW) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established