Thiess Pty Limited
[2022] FWCA 232
•28 JANUARY 2022
| [2022] FWCA 232 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Thiess Pty Limited
(AG2021/9019)
TBS Enterprise Agreement 2017
| Coal industry | |
| DEPUTY PRESIDENT ASBURY | BRISBANE, 28 JANUARY 2022 |
Application for termination of the TBS Enterprise Agreement 2017
Thiess Pty Ltd (Thiess) applies for approval of the termination of an enterprise agreement known as the TBS Enterprise Agreement 2017 (the Agreement). The application is made pursuant to s.222 of the Fair Work Act 2009 (the Act).
The Agreement was approved by the Commission on 18 September 2017 and nominally expired on 17 September 2020. In its Form F24 application, Thiess stated that the Construction Forestry Maritime Mining and Energy Union is covered by the Agreement. While the CFMMEU is not covered by the Agreement it is clear from the accompanying material that the CFMMEU is involved in bargaining for a replacement Agreement, as detailed below.
Thiess, being the employer covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application was accompanied by the required declarations.
The Commission must terminate the Agreement if those matters in s.223 of the Act are satisfied as follows:
“223 When the FWC must approve a termination of an enterprise agreement If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement”
The originating application was accompanied by a Statutory Declaration made by Mr Scott Moran, Group Employee Relations Manager for Thiess. Mr Moran declares that on 9 November 2021, at a bargaining meeting for the proposed TBS Enterprise Agreement 2020 (proposed 2020 Agreement) Thiess put forward a without prejudice proposal that negotiations for the proposed 2020 Agreement cease and the 2017 Agreement be terminated.
Annexed to the Statutory Declaration was a Memorandum of Understanding (MOU) outlining the proposal put forward by Thiess. A memorandum explaining what was discussed at the bargaining meeting on 9 November 2021 (Memorandum) was also provided. In summary, the Memorandum stated that Thiess had made the following proposal:
· TBS Employees agree to terminate the current 2017 Agreement and Thiess agrees to include TBS Employees in the new Lake Vermont Enterprise Agreement (New LV Agreement) which will replace the Lake Vermont Enterprise Agreement 2018 (2018 LV Agreement).
· On agreement of the above by the majority of TBS Employees, TBS employees will be paid a 5% increase to their current annualised salaries and will be eligible to participate in the Lake Vermont bonus scheme for the period July to December 2021. Eligibility for the Lake Vermont bonus scheme will continue with the relevant terms and conditions of the bonus scheme as it applies to employees currently covered by the 2018 LV Agreement. Payment of bonuses under the Lake Vermont scheme will be paid by 11 February 2022.
· Once the New LV Agreement is approved by the Fair Work Commission, TBS Employees will be entitled to access the personal leave provisions of the New LV Agreement, including the entitlement to 150 hours personal leave (in accordance with clause 25 of the 2018 LV Agreement subject to any changes to that clause which occurring during the negotiation).
oOn approval of the New LV Agreement, Thiess will credit existing TBS employees with 30 hours personal leave. This is to make up for the difference between TBS Employee’s current entitlement to 120 hours personal leave and the entitlement to 150 hours personal leave in the 2018 LV Agreement.
oIn accordance with clause 25.3 of the 2018 LV Agreement, existing Employees will then receive 150 hours personal leave on each anniversary of commencement.
oFor clarity, new employees who commence employment after the commencement of the New LV Agreement will be credited 150 hours personal leave on commencement of their employment in accordance with clause 25.3 of the 2018 LV Agreement.
Thiess proposed that during the period when the Agreement is terminated and the New LV Agreement commences, Thiess will continue to apply the current terms and conditions to all TBS Employees as outlined in their common law contracts of employment. In effect, Thiess stated that it will continue to apply the terms and conditions under the Agreement until the New LV Agreement is approved.
The Memorandum further requested that all TBS Employees who agree to the proposal sign the MOU by 28 November 2021. If the majority of employees are in favour of terminating the 2017 Agreement, Thiess advised it will then arrange a formal vote to occur.
Mr Moran declares that Thiess spoke to eligible employees on the A/B crew about the MOU and Memorandum on 23 November 2021 during a meeting. Thiess provided the employees with the Memorandum and MOU and advised eligible employees to sign if they agreed to terminate the Agreement. The following day Thiess met with 13 of the eligible employees on C/D crews to explain the MOU and Memorandum. Thiess again provided the employees with a copy of the Memorandum and MOU to sign if they agreed to terminate the Agreement. Mr Moran declares that there were 6 employees who were offsite and did not attend the meetings on 23 and 24 November 2021. These employees were contacted via phone and also emailed a copy of the MOU and Memorandum. Annexed to Mr Moran’s statement is copy of the MOU signed by 29 out of 32 eligible employees.
Mr Moran declares that the termination of the Agreement was formally agreed to by employees on 3 December 2021, with 31 employees voting to approve the termination of the Agreement out of 32 employees who were covered by the Agreement.
On 25 January 2022 I caused by Associate to send correspondence to the Applicant and the CFMMEU stating my provisional view that the termination of the Agreement should be approved having regard to the matters in s. 223 of the Act. I also sought the views of the CFMMEU and requested that any objection to the application be provided by 4.00pm on Thursday 27 January 2022. On 25 January 2022, correspondence was received from Mr Steve Pierce, District Vice President of the CFMMEU advising that the CFMMEU did not object to the termination of the Agreement.
On the basis of the originating application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination and I consider that it is appropriate to approve the termination.
The termination of the Agreement is approved. The termination will operate from 28 January 2022.
DEPUTY PRESIDENT
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