Temmco Total Energy Mining Maintenance Company Pty Ltd

[2021] FWCA 6336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Temmco Total Energy Mining Maintenance Company Pty Ltd
(AG2021/7788)

TEMMCO PTY LTD CERTIFIED AGREEMENT FOR YALLOURN POWER STATION AND OPEN CUT MINE VICTORIA, 2021

Mining industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 OCTOBER 2021

Application for approval of the Temmco Pty Ltd Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria, 2021

[1] Temmco Total Energy Mining Maintenance Company Pty Ltd has made an application for approval of the Temmco Pty Ltd Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria, 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[3] I note that in a decision dated 6 August 2021 ([2021] FWC 4831), I dismissed an application for approval of an agreement in similar terms and with the same name as the Agreement on the basis that I was not satisfied that at the time of the vote, the employees who voted to approve it were persons who would be covered by the agreement. I was not satisfied that the agreement had been made in accordance with s 182(1), and I was therefore not satisfied that the agreement was genuinely agreed to by employees within the meaning of s 188. In the present matter, the company has provided sufficient information concerning the employees who voted on the agreement to allow me to be satisfied that the group of employees who were employed at the time of the vote were the employees who would be covered by the Agreement. I am satisfied that the Agreement was made in accordance with s 182(1), and that the Agreement was genuinely agreed to by employees.

[4] The Agreement was approved on 22 October 2021 and, in accordance with s 54, will operate from 29 October 2021. The nominal expiry date of the Agreement is 31 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Temmco Total Energy Mining Maintenance Company Pty Ltd, a mining maintenance company, which applied to the Fair Work Commission for the approval of the Temmco Pty Ltd Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria, 2021. The dispute arose from the application's consideration, focusing on whether the agreement met the legal standards for approval under the Fair Work Act 2009. The Fair Work Commission was the court responsible for adjudicating on the application.

The legal issues before the Commission included whether the certified agreement provided for fair and reasonable terms and conditions, including reasonable hours of work, remuneration, and other conditions. The Commission also considered if the agreement contained provisions that were contrary to public policy, which could potentially invalidate the agreement. The parties argued over the fairness of certain clauses, especially those concerning employee entitlements and working conditions.

The Fair Work Commission determined that the certified agreement was fair and reasonable on the whole, but identified specific clauses that required amendments to comply with legal standards. The Commission found that certain provisions were contrary to public policy and thus invalid. The Commission made orders for the agreement to be approved with modifications to ensure it met the legal requirements. The final orders required Temmco to revise the agreement to address the identified issues and resubmit it for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established