Thiess Pty Ltd T/A Thiess

[2023] FWCA 353

[2023] FWCA 353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Thiess Pty Ltd T/A Thiess

(AG2022/5491)

THIESS CURRAGH MINE ENTERPRISE AGREEMENT 2022

Mining industry
COMMISSIONER HUNT	BRISBANE, 3 FEBRUARY 2023

Application for approval of the Thiess Curragh Mine Enterprise Agreement 2022

1. Thiess Pty Ltd T/A Thiess (the Employer) has applied for approval of an enterprise agreement known as the Thiess Curragh Mine Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).  The Agreement is a single-enterprise agreement.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.  On 3 February 2023, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) expressed it had no issues with the undertakings.  

1. 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.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is attached to the Agreement and is taken to be a term of it.

1. I also indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s.205(2) of the Act, the model consultation term prescribed by Schedule 2.3 of the Regulations is attached to the Agreement and taken to be a term of it.

1. I have taken into consideration the material filed in the Commission. 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 s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (CFMMEU), and the ETU being bargaining representatives for the Agreement have given 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 that the Agreement covers the AMWU, CFMMEU and the ETU. 

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 February 2023.  The nominal expiry date of the Agreement is 10 February 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE519080  PR750229>

Annexure A – Undertakings