Specialised Mine Services Pty Ltd

[2023] FWCA 3811

[2023] FWCA 3811[Note: An appeal pursuant to s.604 (C2023/7933) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Specialised Mine Services Pty Ltd

(AG2023/3500)

SPECIALISED MINE SERVICES ENTERPRISE AGREEMENT 2023

Coal industry
DEPUTY PRESIDENT DEAN	CANBERRA, 27 NOVEMBER 2023

Application for approval of the Specialised Mine Services Enterprise Agreement 2023.

1. An application has been made for approval of an enterprise agreement known as the Specialised Mine Services Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Specialised Mine Services Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. The Construction, Forestry, Maritime, Mining and Energy Union (Union), by way of email to the Commission on 9 October 2023, expressed concern with the approval of the Agreement and sought to be heard. The Union is not a party to the Agreement.

1. On 11 October 2023 the Commission provided the Union with access to a number of documents including the application (Form F16), the Employers declaration in support of the approval (Form F17B), the various emails and correspondence, and a copy of the Agreement (the Documents). The Documents were in part redacted, in line with the Commission’s standard practice.

1. By email dated 16 October 2023 the Union requested that it be provided with an unredacted copy of the Documents. I declined this request, as I was of the view that the Union had been provided with sufficient information to raise any concerns it wished to raise.

1. I provided the Union with an opportunity to be heard in the form of the provision of written submissions. On 23 October 2023 the Union filed a 25-page submission. Given the breadth of the issues raised by the Union, only a brief summary of the matters raised by the Union is included as follows:

1. Whether the Agreement was compliant with s188(2) of the Act, going to the authenticity or ‘moral authority’ of the Agreement. In essence, the Union contended there was nothing before the Commission that could result in the Commission being satisfied as to s188(2) of the Act, and further that the Agreement was made with only four employees, being just above the statutory minimum for making an enterprise agreement. The Union argued that the size of the employee cohort was seriously at odds with the scope of the Agreement which extended to employees employed by the employer at projects in NSW that work in production and/or engineering roles. The Union also raised concerns about which classification the four employees fell under, whether they were employed on a full time, part time or casual basis, and which sites they performed work.

2. Additional concerns raised by the Union included that there was no actual bargaining or negotiation with respect to the Agreement and it was evidence that the Agreement was not the product of an authentic exercise in agreement making. It also contended that the Agreement was a “base-line” agreement in that the sole term that was more beneficial to the Award was the hourly wage rate, and some of the persons involved in the employers business were “well known” to the Union and as a result the identity of the four employees would need to be disclosed to the Union.

3. The Union raised a number of BOOT concerns including that the Agreement omitted various provisions of the Black Coal Mining Industry Award 2020 and as a result was less beneficial for employees.

4. The Agreement introduced casual employment for certain classifications where this was not allowable under the Award. Further, it contended that a reduction in the casual rate of pay was ‘fatal’ to the approval of the Agreement.

5. In terms of s180(5) of the Act, the Union submitted that the employer failed to take all reasonable steps to explain the terms of the Agreement and the effect of those terms. It contended that the explanation was manifestly inadequate. The Union submitted that the “Summary of key terms and conditions” document had a number of failings including omitting key terms such as part time employment, annual leave and public holidays.

6. In relation to s188(4A), the Union contended that the Commission could not be satisfied that the Agreement was genuinely agreed to by the employees because the Commission could not be satisfied that the employer complied with subsection 180(5) of the Act.

7. The Union raised concerns about the ballot process, in particular that it allowed a process by which employees could vote by proxy.

8. The Union raised concerns about whether the signature requirements under s.185(2)(a) had been complied with.

1. The Employer filed detailed submissions in reply on 30 October 2023, addressing the matters raised by the Union.  In summary:

1. The Employer denied that the requirements of s.188(2) had not been met. It said the Union’s arguments were based on speculation with no evidence to support any of its allegations. It noted the information provided in the Employer’s declaration to the effect that all employees stated they had experience in making enterprise agreements and were aware of their right to be represented if they chose. Given their experience, the Employer submitted that they knew what they were doing and consequently genuinely agreed as required under the Act.

2. The Employer highlighted other aspects of the Employer’s declaration and said the veracity of this evidence could not be doubted given the significant consequences for it if it were found to have provided a false declaration.

3. In terms of the cohort size, the Employer noted that the Agreement met the requirement of s172(6) in that at least two employees are required to make an agreement, and the suggestion that a workforce of four employees is irreconcilable with black coal mining could not be universally applied as a rule for all businesses.

4. In terms of whether genuine bargaining occurred, the Employer said that the fact limited bargaining took place is not automatically indicative that there was no genuine agreement, particularly when the four employees were experienced in agreement making.

5. The Employer submitted that the Agreement satisfied the BOOT and the fact that the sole more beneficial term identified was the hourly wage rated did not change this.

6. As to the connection between certain individuals involved in the employer’s business, the Employer said this was irrelevant for the purpose of determining whether the requirements of the Act had been met.

7. In response to the concern raised about the ballot process, the Employer referenced the evidence provided in the Employer’s declaration about the ballot process and contended that the requirements of the Act in this regard had been met.

8. The Employer noted that the Commission had already advised it that it filed an unsigned copy of the Agreement, and that a signed copy had subsequently been filed with the Commission.

9. The Employer also noted the undertakings it had already provided to the Commission in response to matters that had been raised.

1. The Commission’s usual practice in relation to the approval of enterprise agreements involves a review by Commission staff in addition to the review undertaken by the Commission Member. That process resulted in various matters being raised with the Employer and written undertakings being provided. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

1. 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.

1. In particular, I am satisfied of the following:

1. The size of the cohort meets the statutory minimum, and I accept the submission of the Employer that a small business is not irreconcilable within the coal industry;
2. The BOOT concerns are addressed by the written undertakings provided; in particular, an undertaking that the Agreement is to be read and interpreted in conjunction with the Award such that any more beneficial provisions in the Award will prevail to the extent of inconsistency.
3. The employees covered by the Agreement are sufficiently experienced in bargaining and as a result no concerns arise in respect of whether genuine bargaining occurred;
4. The ballot process was not inconsistent with the Act; and
5. The explanation of terms and the effect of the terms was sufficient to meet the requirements of the Act.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2023. The nominal expiry date of the Agreement is 1 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A