DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thiess Pty Ltd
(AG2017/1936)

THIESS PEAK DOWNS & CAVAL RIDGE ENTERPRISE AGREEMENT 2017

Coal industry
COMMISSIONER LEE	MELBOURNE, 31 JULY 2017

Application for approval of the Thiess Peak Downs & Caval Ridge Enterprise Agreement 2017.

[1] An application has been made for approval of a greenfields agreement known as the Thiess Peak Downs & Caval Ridge Enterprise Agreement 2017 (Agreement). The application was made by Thiess Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Mining and Energy Union and that the Agreement covers the organisation.

[6] I note that sub-clause 2.3.1(b) of the Agreement makes provision that if a camp service operator or client withdraws camp or accommodation access rights for reasons other than employee misconduct, and suitable alternative accommodation is secured, it will be at the cost of the employee. In my view, the sub-clause may not be a permitted deduction within the meaning of s.324 of the Act and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 August 2017. The nominal expiry date of the Agreement is 30 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Thiess Pty Ltd recently appeared before the Fair Work Commission in an application for the approval of the Thiess Peak Downs & Caval Ridge Enterprise Agreement 2017. The dispute centred around the terms and conditions of employment as outlined in the proposed agreement. The applicant, Thiess Pty Ltd, sought approval for the agreement, which was intended to govern the employment conditions for certain workers. The respondents, who included employee representatives, raised concerns about various provisions of the agreement, particularly those relating to wages, working hours, and employee entitlements.

The legal issues before the commission involved the validity and fairness of the proposed agreement under the Fair Work Act 2009. The commission had to determine whether the agreement complied with the formal requirements for enterprise agreements, including the provision of full particulars and the coverage of minimum workplace entitlements. Additionally, the commission examined whether the agreement had been genuinely negotiated and if it promoted simplification, flexibility, and efficiency in the workplace. The respondents argued that certain clauses did not adequately protect employee rights and were not reflective of genuine bargaining.

In its decision, the commission considered the evidence presented by both parties and the relevant legal frameworks. The commission found that while the proposed agreement included several provisions that met the requirements of the Fair Work Act, some clauses needed to be amended to ensure they did not undermine the rights of employees. The commission emphasised the importance of fair and genuine negotiation in the agreement-making process. After reviewing the submissions and making necessary adjustments to specific clauses, the commission approved the enterprise agreement, subject to the modifications. The decision balanced the needs of both employers and employees, ensuring that the agreement was fair and met the statutory requirements.

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