Thiess Pty Ltd

[2024] FWCA 1326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Thiess Pty Ltd

(AG2024/889)

THIESS MT HOLLAND ENTERPRISE AGREEMENT 2024

Mining industry
COMMISSIONER WILSON	MELBOURNE, 12 APRIL 2024

Application for approval of the Thiess Mt Holland Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Thiess Mt Holland Enterprise Agreement 2024 (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 Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 9 February 2024 and the Agreement was made on 14 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The Employer 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 April 2024. The nominal expiry date of the Agreement is 12 April 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Thiess Pty Ltd recently applied to the Fair Work Commission for approval of the Thiess Mt Holland Enterprise Agreement 2024, following negotiations with its employees. The applicants sought to have the agreement approved as a modern award, superseding the existing agreements and becoming the basis for employees' employment conditions. The nature of the dispute was primarily concerned with the procedural aspects of the application and whether the agreement met the necessary criteria for approval.

The legal issues before the court encompassed whether the application complied with the relevant sections of the Fair Work Act 2009. Specifically, the court had to determine if the agreement was certified as a simple, low risk, or high-risk agreement. Additionally, the court needed to assess whether the agreement satisfied the requirements of genuine bargaining and whether it was fair and reasonable. The court also considered the extent to which the agreement provided for the protection of vulnerable employees, particularly those in casual or part-time roles.

After thorough examination of the application and the accompanying documentation, the court found that the agreement complied with all the statutory requirements. The agreement was certified as a simple agreement, which meant it did not need to be assessed for genuineness of bargaining. The court was satisfied that the agreement was fair and reasonable, and it provided appropriate protections for vulnerable employees. Consequently, the court approved the Thiess Mt Holland Enterprise Agreement 2024, and it became effective as a modern award. This decision established the new agreement as the basis for employees' employment conditions, superseding the existing agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established