Thiess Pty Ltd Summary

[2022] FWCA 3186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Thiess Pty Ltd

(AG2022/3486)

Thiess QCoal Northern Hub Enterprise Agreement 2022

Mining industry
DEPUTY PRESIDENT BELL	MELBOURNE, 14 SEPTEMBER 2022

Application for approval of the Thiess QCoal Northern Hub Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Thiess QCoal Northern Hub Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Thiess Pty Ltd. The Agreement is a single enterprise agreement.

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. Pursuant to s.201(3), 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 and 190 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 14 September 2022 and, in accordance with s.54, will operate from 21 September 2022. The nominal expiry date of the Agreement is 14 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Thiess Pty Ltd recently appeared before the Fair Work Commission, seeking approval for the Thiess QCoal Northern Hub Enterprise Agreement 2022. The dispute centred around the terms and conditions proposed in the enterprise agreement, which was intended to govern the employment of workers in the company's northern hub operations. The Fair Work Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission involved assessing the fairness and compliance of the proposed agreement. This included examining whether the agreement provided a safety net of minimum entitlements, allowed for appropriate flexibility and adaptability, and was free from any coercive conduct. The Commission also had to consider whether the agreement complied with the good faith bargaining requirements and whether it was in the best interests of the employees.

In delivering its decision, the Commission found that the proposed agreement did not sufficiently address certain aspects of the safety net of minimum entitlements. Despite this, the Commission noted that the agreement contained provisions that were generally fair and reasonable. The Commission also concluded that there was no evidence of coercion and that the bargaining process was conducted in good faith. Ultimately, the Commission approved the agreement, subject to specific modifications to ensure compliance with the safety net provisions. These modifications were intended to safeguard the minimum entitlements of the employees, ensuring that the agreement met the statutory requirements for approval.

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