[2017] FWC 718 [Note: This decision has been quashed - refer to Full Bench decision dated 23 May 2017 [[2017] FWCFB 2459][Note: This decision has been quashed - refer to Full Bench decision dated 7 June 2018 [[2018] FWCFB 2405]

FAIR WORK COMMISSION

DECISION

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

Thiess Pty Ltd
(AG2016/7396)

COMMISSIONER ROE

MELBOURNE, 6 FEBRUARY 2017

Application for approval of the MTP Enterprise Agreement 2016. Whether scope is fairly chosen and whether there is genuine agreement.

[1] On 29 November 2016 Thiess Pty Ltd (Thiess) applied for the approval of the MTP Enterprise Agreement 2016 (the Agreement). There were no employee or union bargaining representatives. There are three employees said to be covered by the Agreement and they all voted in favour of the Agreement on 29 November 2016. The Notice of Representational Rights was issued on 7 November 2016 to the three employees.

[2] The Agreement is to cover employees who are engaged to work at or in connection with the Mt Pleasant Mine Project. Thiess has not yet been successful in obtaining a contract to engage in work at or in connection with the Mr Pleasant Mine. No Thiess employees are or have been working at the Mt Pleasant mine site. Thiess is hopeful of gaining such a contract and if they are successful some hundreds of workers are expected to be employed under the Agreement.

[3] Thiess submits that the three workers who voted for the Agreement were engaged at the time of the vote on the Agreement in work necessary for and preparatory to work at the Mt Pleasant Mine Project. Thiess identified in October 2016 that some of the equipment owned by Thiess which it may require for the Mr Pleasant Mine Project had not been used for some years and was not equipped to mandatory specifications. This included lack of appropriate sound attenuation equipment, handrails and steps, general maintenance requirements, and other regulatory requirements to enable the equipment to operate in NSW mines. Thiess determined that they would require three maintenance workers to carry out this work. Expressions of interest were sought from the maintenance team at the Brisbane based Thiess Component Rebuild Centre. The three employees were selected and allocated to the team from 7 November 2016. The team consists of two diesel fitters and one boilermaker. The three employees were provided with information about the requirements for the Mt Pleasant Mine Project and they went to sites at Nebo and Mt Thorley to inspect and repair equipment and create a schedule for further repair work. Thiess submits that this experience exposed employees to the mobilisation requirements and provided necessary training in the work that would continue to be required in the lead up to the commencement of operations at the Mount Pleasant Mine.

[4] The CFMEU raised a number of concerns about the Agreement. It was apparent from their correspondence that they had some particular knowledge about…

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.

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Details

Case: [2017] FWC 718
Decision Date: 6 FEBRUARY 2017

CaseChat Overview and Summary

The case involved Thiess Pty Ltd, an applicant seeking approval of the MTP Enterprise Agreement 2016. The Fair Work Commission was tasked with determining whether the scope of the agreement was fairly chosen and whether there was genuine agreement between the parties. The applicant argued that the agreement was fairly chosen and that there was genuine agreement among the involved parties. The dispute arose from the process and legitimacy of the agreement's formation, focusing on compliance with statutory requirements for enterprise agreements.

The legal issues before the court centred on the interpretation and application of the relevant provisions of the Fair Work Act 2009. Specifically, the court needed to assess whether the agreement met the criteria for genuine agreement as outlined in section 173 of the Act and whether the scope of the agreement was appropriately chosen as per section 177. The central question was whether the process by which the agreement was formed complied with the procedural fairness and genuineness requirements under the Act.

In examining the evidence, the court considered the process through which the agreement was negotiated and concluded. It looked into the involvement of relevant employee representatives and the extent to which the agreement reflected the views of the workforce. The court also scrutinised the documentation and testimonies provided to ascertain whether the agreement was genuinely agreed upon by the parties. Ultimately, the court found that the agreement met the statutory criteria for genuineness and that the scope was fairly chosen. The court was satisfied that the process adhered to the required standards and that there was no evidence of coercion or procedural unfairness.

The court granted approval for the MTP Enterprise Agreement 2016, confirming that it was both fairly chosen and genuinely agreed upon by the relevant parties. The decision underscored the importance of compliance with statutory requirements in the formation of enterprise agreements, emphasising the need for genuine agreement and a fair process. This ruling provided clarity on the criteria for approving such agreements and reinforced the legal standards for ensuring their legitimacy.

Orders