DECISION

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

Sparta Mining Services Pty Ltd
(AG2016/2507)

Coal industry
COMMISSIONER SPENCER	BRISBANE, 15 DECEMBER 2016

Application for approval of the Sparta Mining Services Pty Ltd Enterprise Agreement 2016 – new objection recorded at Appeal - whether agreement genuinely agreed – further facts emerged before Full Bench since initial hearing – consideration of recent Full Bench authority – provision or access to policies incorporated in Agreement – reconsideration of provision – based on further evidence

Introduction

[1] This Decision relates to an application made pursuant to section 185 of the Fair Work Act 2009 (the Act) by Sparta Mining Services Pty Ltd (the Applicant/Sparta) for the approval of the Sparta Mining Services Pty Ltd Enterprise Agreement 2016 (the proposed Agreement/the Sparta Agreement).

[2] The Construction, Forestry, Mining and Energy Union (the CFMEU/the Union), whilst not a bargaining representative, sought to intervene in the proceedings and opposed the application on the basis that the Agreement did not meet the statutory approval tests under the Act.

[3] The Commission, as currently constituted, conducted a hearing in respect of the CFMEU’s intervention and objections to the approval. A series of objections were dealt with in the Decision at first instance. A Decision was released on 5 July 2016 1 which considered these matters. A further Decision approving the Agreement was released on 6 July 20162.

Appeal Decision

[4] The CFMEU lodged an appeal against these Decisions and raised an objection not previously taken as to whether there were reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees. The Full Bench noted that the CFMEU did not raise this argument in the first instance hearing, but sought a consideration of this issue in any rehearing. The Full Bench confirmed this with the CFMEU at the hearing of the Appeal:

“VICE PRESIDENT HATCHER: You didn't run a genuinely agreed point, in the general sense, under 180(8)(c), at first instance, did you?

MR WALKADEN: We didn't, your Honour.” 3

[5] The Full Bench referred to (in referring this matter back for rehearing), the Decision of KCL Industries Pty Ltd (KCL) 4, which was not released at the time of hearing.

[6] In line with the appeal by the CFMEU, the Full Bench 5 referred the matter for review as to whether the approval requirements in s.186(2)(a) were satisfied taking into account the requirement in s.188(a)(i) for compliance with s.180(2); and the requirement for section 188(c) regarding whether there are no reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. The parties were permitted to adduce further evidence in this process.

Re-determination – further facts and further case law

[7] Accordingly, further Directions were set for the filing of material, Directing the parties to file any further evidence in respect of the following matters:

“Whether the approval requirement in s.186(2)(a) of the Act was satisfied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sparta Mining Services Pty Ltd

Details

AGLC: Sparta Mining Services Pty Ltd [2016] FWC 8520
Case: [2016] FWC 8520
Decision Date: 15 DECEMBER 2016

CaseChat Overview and Summary

Sparta Mining Services Pty Ltd's Enterprise Agreement 2016 was under scrutiny in the Fair Work Commission, where the company sought approval. The matter was before the Full Bench, with the Commissioner's initial approval having been appealed. The appellant raised a fresh objection regarding whether the agreement had genuinely been reached by the parties. This objection was based on new facts that had come to light after the initial hearing.

The legal issues before the court were twofold: whether the agreement was genuinely agreed upon by the parties, and if there was any new evidence that could alter the outcome of the case. The court needed to consider the recent authority of the Full Bench and the relevance of the provision or access to policies incorporated in the agreement. The reconsideration of a specific provision was based on the new evidence that had emerged.

The Full Bench examined the circumstances under which the agreement was made and considered the appellant's new objection. They concluded that the evidence provided did not sufficiently undermine the genuineness of the agreement. The Full Bench found that the agreement was genuinely agreed upon and approved the Enterprise Agreement 2016. The court's decision was informed by recent Full Bench authority, which provided a framework for assessing the genuineness of enterprise agreements.

The final orders of the court were that the Enterprise Agreement 2016 of Sparta Mining Services Pty Ltd be approved, subject to the terms and conditions outlined in the agreement. The court's decision was based on the evidence presented and the application of recent Full Bench authority. The reconsideration of the specific provision did not result in any changes to the overall outcome.

Orders