Thiess Pty Ltd T/A Thiess Summary

[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

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.

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.

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.

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.

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.

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.

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.

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

Annexure A – Undertakings

Thiess Pty Ltd, trading as Thiess, applied to the Fair Work Commission for approval of the Thiess Curragh Mine Enterprise Agreement 2022. The applicant is a mining services company, and the dispute concerned the terms and conditions of employment for its workers at the Curragh Mine site. The Commission, led by Deputy President M.J. Price, was tasked with determining whether the agreement met the statutory requirements and was fair and reasonable.

The primary legal issue before the Commission was whether the enterprise agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirements for good faith bargaining, the inclusion of essential terms, and the fairness of the terms of the agreement. The Commission also had to consider whether the agreement met the standards for enterprise agreements as set out in the Fair Work Regulations 2009. The applicant argued that the agreement was the product of good faith bargaining and contained all the necessary terms, while also being fair and reasonable for the employees.

After reviewing the evidence and arguments presented, the Commission found that the agreement was indeed the product of genuine bargaining efforts and contained all the mandatory terms required by the Act. The Commission was satisfied that the agreement was fair and reasonable, taking into account the specific circumstances of the industry, the parties involved, and the interests of the employees. The Deputy President concluded that the agreement was in compliance with the relevant legislation and was appropriate for approval.

Consequently, the Fair Work Commission approved the Thiess Curragh Mine Enterprise Agreement 2022, finding that it met the statutory requirements and was fair and reasonable. The Commission issued its decision, and the agreement became effective from the date of approval, governing the employment terms and conditions for the workers at the Curragh Mine site.

Thiess Pty Ltd T/A Thiess

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established