Thiess Pty Ltd T/A Thiess Pty Ltd
[2024] FWCA 818
•5 MARCH 2024
| [2024] FWCA 818 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Thiess Pty Ltd T/A Thiess Pty Ltd
(AG2024/349)
THIESS ANT HILL AND GROOTE EYLANDT METALLIFEROUS MINING ENTERPRISE AGREEMENT 2024
| Mining industry | |
| COMMISSIONER CONNOLLY | MELBOURNE, 5 MARCH 2024 |
Application for approval of the Thiess Ant Hill and Groote Eylandt Metalliferous Mining Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Thiess Ant Hill and Groote Eylandt Metalliferous Mining Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Thiess Pty Ltd T/A Thiess Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 23 February 2024.
The notification time for the Agreement under s.173(2) was 5 December 2023 and the Agreement was made on 9 February 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]
On 26 February 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.
There is one National Employment Standards (NES) issue that requires comment:
· Public holiday substitution - Clause 27.2 of the Agreement provides that by agreement between the Employer and the majority of affected employees, an alternative day may be taken as the public holiday instead of any of the prescribed days. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
Clause 3.1 of the Agreement acts as an effective NES precedence clause, in that it states that “The Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Unless otherwise provided for, where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.” As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.
The Applicant has provided written undertakings, dated 28 February 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.
I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.
As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.
The “The Australian Workers’ Union”, 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) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 11 March 2027.
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 that included those to effect described above.
Printed by authority of the Commonwealth Government Printer
<AE523734 PR772054>
0
0
0