DECISION

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

Thiess Pty Ltd
(AG2019/2746)

THIESS MINING LAKE VERMONT MINE ENTERPRISE AGREEMENT 2018

Coal industry
COMMISSIONER SPENCER	BRISBANE, 23 AUGUST 2019

Application for approval of the Thiess Mining Lake Vermont Mine Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Thiess Mining Lake Vermont Mine Enterprise Agreement 2018 (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] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) and s.201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] The following organisations, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers those organisations.

• The Constructions, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (CFMMEU);

• The Automotive, Foods, Metals, Engineering, Printing and Kindred Industries’ Union, known as the Australian Manufacturing Workers’ Union (AMWU);

• The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2019. The nominal expiry date of the Agreement is 30 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Thiess Pty Ltd, the respondent, applied to the Fair Work Commission for approval of the Thiess Mining Lake Vermont Mine Enterprise Agreement 2018. The applicant, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The dispute involved the terms of the proposed enterprise agreement, specifically concerning the classification of employees and the impact on their entitlements. The matter was heard by the Full Bench of the Fair Work Commission.

The legal issues before the Commission were whether the proposed agreement complied with the relevant legislative framework and if it was made in good faith and on a fair and reasonable basis. The Commission needed to consider whether the agreement met the requirements of the Fair Work Act 2009, particularly in relation to the process of making the agreement and its substantive terms. The Commission also had to assess if the agreement was made without coercion, undue influence or other unfair labour practices.

The Full Bench found that the agreement was not made in good faith and on a fair and reasonable basis as it contained provisions that were not consistent with the legislative requirements. The Commission highlighted that certain clauses in the agreement had the potential to undermine the entitlements of employees. Furthermore, the process by which the agreement was negotiated was flawed, leading to the conclusion that the agreement did not meet the standards of good faith bargaining. Consequently, the application for approval was dismissed.

The Fair Work Commission ordered that the Thiess Mining Lake Vermont Mine Enterprise Agreement 2018 be returned to the parties for further negotiation in accordance with the requirements of the Fair Work Act 2009. The Commission directed that the agreement must be made in good faith and on a fair and reasonable basis, ensuring that the employees' entitlements are protected and that the negotiation process is transparent and free from any unfair practices.

Thiess Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established