Thiess Pty Ltd Summary

[2021] FWCA 7149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thiess Pty Ltd
(AG2021/8511)

THIESS MT ARTHUR COAL ENTERPRISE AGREEMENT 2021

Mining industry
COMMISSIONER SIMPSON	BRISBANE, 16 DECEMBER 2021

Application for approval of the Thiess Mt Arthur Coal Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Thiess Mt Arthur Coal Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Thiess Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[4] Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CFMMEU.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Thiess Pty Ltd applied to the Fair Work Commission (FWC) for approval of the Thiess Mt Arthur Coal Enterprise Agreement 2021. The dispute arose from a bargaining process between Thiess and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The FWC was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the FWC was whether the agreement was a "good faith" agreement, as required by section 234 of the Act. This involved examining the bargaining process, the conduct of the parties, and whether the agreement was negotiated in good faith. Additionally, the FWC had to consider if the agreement complied with the provisions of the Act, including whether it provided for minimum entitlements and did not discriminate against any group of employees.

The FWC found that the agreement was negotiated in good faith, despite some procedural irregularities. It emphasised the importance of the parties’ willingness to engage in meaningful discussions and reach a resolution. The Commission concluded that the agreement provided for the minimum entitlements as required by the Act and did not unfairly discriminate against any group of employees. Therefore, the FWC approved the agreement.

In approving the agreement, the FWC noted that while some procedural issues existed, the overall process demonstrated a genuine attempt by both parties to negotiate in good faith. The decision highlighted the importance of reaching agreements that balance the interests of employers and employees while adhering to statutory requirements.

Thiess Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established