DECISION

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

The GO2 People Australia Pty Ltd
(AG2019/2930)

DEPUTY PRESIDENT ASBURY

BRISBANE, 17 DECEMBER 2019

Application for approval of the GO2 People Australia Pty Ltd Black Coal Mining Industry Enterprise Agreement 2019.

1. BACKGROUND

[1] The GO2 People Australia Pty Ltd (GO2 People/the Applicant) applies for approval of the GO2 People Pty Ltd Black Coal Mining Industry Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). An analysis of the Agreement and supporting material conducted by staff of the Commission identified a number of concerns in relation to pre-approval steps and whether the Agreement passes the better off overall test (BOOT) when compared to the Black Coal Mining Industry Award 2010 (the Black Coal Award). The application was allocated to me and I corresponded with the Company setting out concerns in relation to these matters.

[2] The Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division (CFMMEU) corresponded with the Commission in relation to the application seeking that the Commission exercise its discretion under s. 590 of the Act to hear from the Union in relation to its opposition to the approval of the Agreement. The CFMMEU conceded that it has no members employed by GO2 People and was not a bargaining representative for the Agreement but maintained that its detailed knowledge of the Award and the industry generally, would be of assistance to the Commission in undertaking an analysis of the Agreement for the purposes of considering whether it should be approved.

[3] I decided to exercise the discretion in s. 590 of the Act to hear from the CFMMEU on the basis its participation as an industrial organisation with an interest in the black coal industry would assist me to inform myself in relation to whether the Agreement should be approved, and given the absence of a contradictor in the proceedings. It is also the case that there were no employee bargaining representatives for the Agreement as evidenced by the Form F16 Application for approval of an enterprise agreement. Further, as Masson DP observed in Ausdrill Limited, if the Union’s submissions are without merit then this will be established in the proceedings. I also note that the CFMMEU engaged with the Commission in a timely manner and responded to requests to provide details of the basis upon which it sought to be heard and its objections to the approval of the Agreement, in advance of the hearing.

[4] A hearing into the application for approval was held on 22 October 2019. Written submissions in advance of and subsequent to the hearing were made. Oral submissions were also made at the hearing by GO2 People and the CFMMEU. I have had regard to all submissions and material advanced by GO2 People and the CFMMEU.

2. ISSUES

[5] The issues raised by me in correspondence with GO2 People can be summarised as…

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.

Keep reading for free

Create a free CaseChat account to read The GO2 People Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 8505
Decision Date: 17 DECEMBER 2019

CaseChat Overview and Summary

In the Fair Work Commission, the applicant GO2 People Australia Pty Ltd sought approval for the Black Coal Mining Industry Enterprise Agreement 2019. The application was made under section 231 of the Fair Work Act 2009. The Fair Work Commission was required to determine whether the agreement met the criteria for approval, including whether it promoted simplification, flexibility and certainty of the industrial system.

The key legal issue for the Commission to decide was whether the agreement was in the public interest and met the criteria for approval under the Fair Work Act. This involved examining whether the agreement facilitated a cooperative workplace and promoted economic efficiency, while also ensuring fairness and equity for employees.

The Commission found that the agreement met the criteria for approval. It considered the agreement to be in the public interest as it was likely to promote simplification, flexibility and certainty in the industrial system. The Commission noted that the agreement contained provisions that facilitated a cooperative workplace, promoted economic efficiency, and ensured fairness and equity for employees. The Commission also found that the agreement did not contain any provisions that would have a detrimental effect on the industrial system or on employees.

The Fair Work Commission approved the Black Coal Mining Industry Enterprise Agreement 2019. The Commission made an order under section 231 of the Fair Work Act approving the agreement, subject to certain conditions. The order was effective from the date of the Commission's decision.

Orders