Tesa Group Pty Ltd

[2022] FWCA 681

[2022] FWCA 681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tesa Group Pty Ltd

(AG2022/306)

TESA Group Pty Ltd WA Coal Greenfields Enterprise Agreement 2022

Mining industry
COMMISSIONER PLATT	ADELAIDE, 25 FEBRUARY 2022

Application for approval of the TESA Group Pty Ltd WA Coal Greenfields Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the TESA Group Pty Ltd WA Coal Greenfields Enterprise Agreement 2022 (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by Tesa Group Pty Ltd. The agreement is a single enterprise agreement that is a greenfields agreement.

1. The matter was allocated to my Chambers on 21 February 2022.

1. On 22 February 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

1. The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

1. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clause 13.2 of the Agreement provides that if an employee is absent without good reason on a working day before or after a holiday, they will not be entitled to payment for the holiday. Section 116 of the Act provides that if an employee is absent on a public holiday the employer must pay the employee for their ordinary hours on the holiday.

·   Clause 16.1 of the Agreement does not provide compassionate leave in case of miscarriage consistent with s.104 of the Act.

1. Clause 5.1 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 24 February 2022. The undertaking deals with the following topics:

·   The hourly rate for part-time trainees has been increased to $23.25 to ensure the Agreement passes the better off overall test (BOOT). In addition, the employer will not employ any person to undertake a Certificate 4 Traineeship.

·   An employee will be entitled to be paid both weekend penalties and where applicable, the penalties in clause 10.2 of the Agreement on a compounding basis. The result of the interaction of those clauses is outlined in the undertakings attached to the Agreement.

·   The employer will not stand down an employee without pay under clause 24.1 unless such a stand down falls within the circumstances described in s.524(1) of the Act.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the CFMMEU, and that the Agreement covers this organisation.

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

1. I am satisfied that it is in the public interest to approve the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 24 February 2026.

COMMISSIONER

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