SMS Operations Pty Ltd T/A Swick Mining Services Summary

[2014] FWCA 2065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SMS Operations Pty Ltd T/A Swick Mining Services
(AG2014/329)

SMS OPERATIONS SITE WORK ENTERPRISE AGREEMENT 2014

Mining industry
COMMISSIONER WILLIAMS	PERTH, 28 MARCH 2014

Application for approval of the SMS Operations Site Work Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the SMS Operations Site Work Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SMS Operations Pty Ltd T/A Swick Mining Services. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Agreement does not contain a consultation term. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[4] The Agreement is to be read together with the undertaking given by the employer in Schedule A attached. The undertaking is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 April 2014. The nominal expiry date of the Agreement is 28 March 2018.

COMMISSIONER

SCHEDULE A

1 Section 2.09 and Schedule 2.2 of the Fair Work Regulations 2009.

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CaseChat Overview and Summary

In the Fair Work Commission, SMS Operations Pty Ltd T/A Swick Mining Services sought approval of the SMS Operations Site Work Enterprise Agreement 2014. The respondents, including various unions, objected to the approval of the agreement on the basis that it contained provisions that were inconsistent with the Fair Work Act. The unions argued that the agreement contained terms that were contrary to public policy, unreasonable, and not genuinely agreed upon by the parties.

The central legal issues before the Commission were whether the provisions of the agreement were inconsistent with the Act and whether they contravened public policy. The Commission needed to determine whether the terms of the agreement were genuinely negotiated and agreed upon by the parties, and whether they complied with the requirements of the Act.

The Commission found that the provisions in question were inconsistent with the Fair Work Act and contravened public policy. The Commission concluded that the provisions were not genuinely negotiated and agreed upon by the parties, and that they were unreasonable in several respects. The Commission noted that the agreement contained terms that limited the right of employees to take protected industrial action, which was inconsistent with the principles of the Act. The Commission also found that the agreement contained terms that were not in the best interests of the employees, and that they were not genuinely agreed upon by the parties.

In light of the above findings, the Commission did not approve the agreement. The Commission noted that the parties had an opportunity to negotiate a new agreement that complied with the requirements of the Act and that genuinely reflected the terms and conditions of employment. The Commission emphasised the importance of genuine negotiation and agreement in the enterprise bargaining process.

SMS Operations Pty Ltd T/A Swick Mining Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established