[2014] FWC 5628
The attached document replaces the document previously issued with the above code on 18
August 2014.
Two changes have been made. The first sentence of paragraph [109], “The following matters
arise in the context of my consideration of s.186(2)(c) of the Act.” has been moved to the
beginning of paragraph [114].
The second sentence of paragraph [109] “I have set that subsection out earlier in this
decision.” has been deleted.
Sophie Bonnette
Associate to Senior Deputy President Harrison
Dated 25 August 2014.
1
Fair Work Act 2009
s.185—Enterprise agreement
Collinsville Coal Operations Pty Limited
(AG2014/568)
SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 18 AUGUST 2014
Application for approval of the Collinsville Coal Operations Enterprise Agreement 2014.
Introduction
[1] Collinsville Coal Operations Pty Limited (Collinsville) has made an application under
s.185 of the Fair Work Act 2009 (the Act) for approval of the Collinsville Coal Operations
Enterprise Agreement 2014 (Agreement). The Agreement covers Collinsville and employees
engaged as mineworkers at its Collinsville mine. The mine is situated in the Central
Queensland.
[2] The Construction, Forestry, Mining and Energy Union (CFMEU, the Union) filed a
form F18 on the basis it asserted it was a bargaining representative for the Agreement. The
form contained a number of grounds upon which it opposed approval of the Agreement. The
matter was listed for hearing before me. In the hearings, Collinsville was represented by Mr J
Murdoch QC and the CFMEU by Mr B Docking.
[3] The status asserted by the CFMEU of it having been a bargaining representative and
the role it was entitled to play in the approval proceedings were contested issues about which
I comment later.
The application and forms F16 and F17
[2014] FWC 5628
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 5628
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[4] Collinsville filed a form F16 and a form F17 together with a copy of the Agreement
sought to be approved. A copy of the notice of employee representational rights (NoRR) was
also filed.
[5] I refer to the form F16. The form indicates that there were no “employee organisations
(unions)” involved in the agreement making process as bargaining representatives. It
indicates that there were 21 employee bargaining representatives involved in the agreement
making process who had provided instruments of appointment to the employer. The names of
each of those employees who had appointed a bargaining representative were listed in the
form. All the persons named as bargaining representatives were individuals; no union was
nominated.
[6] I refer to the form F17. It was completed by Mr Bernie O'Neill, the General Manager.
I should note that this form comprises a statutory declaration of Mr O’Neill being the relevant
employer representative. It addresses a number of considerations to which the Act requires
consideration be given prior to a member of the Commission deciding whether to approve an
enterprise agreement. Each of the questions asked in the form, and relevant to the application,
was answered by Mr O'Neill. For present purposes, it is adequate for me to identify only a
few of the entries. Other matters are referred to later when I identify the facts upon which I
have relied.
[7] The Agreement covers mineworkers who were employed to operate and/or maintain
plant and equipment at the mine. It was said that these were employees who would be covered
by classifications contained in Schedule A of the Black Coal Mining Industry Award 2010
(Black Coal Mining Award).1 This is the relevant modern award against which the better off
overall test is to be applied, a matter which I address later in this decision. Staff employees
engaged in management, technical support and administration are not covered by the
Agreement. It was submitted that the group which was covered was operationally and
organisationally distinct.
[8] The form next refers to the dates when the NoRR was provided to each of the relevant
employees covered by the Agreement, the provision of a copy of the Agreement to those
employees and explanation of its terms and their effect on the employees, and advice about
the vote on the Agreement that was to be taken. The vote for the Agreement was held on 11
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March 2014. On that day, all 21 employees who would be covered by the Agreement cast a
valid vote and voted to approve the Agreement.
Notice to the employee bargaining representatives of the hearing
[9] In respect of each of the notices of listing for the hearing days, Collinsville was
directed to provide a copy of the notice to all the individual bargaining representatives. I
subsequently received advice from solicitors for Collinsville in relation to the actions
undertaken to bring the notice of listing of the first day of hearing to employees. An affidavit
of Mr Philip Nobes addressed the actions taken by Collinsville to comply with the direction in
respect of the second day of hearing. I am satisfied that my directions were properly
complied with. None of the 21 employees who voted on the Agreement contacted my
chambers, filed any written submission, nor asked for any arrangements be made to allow
them to participate in the hearing.
Before the first day of proceedings
[10] A request was forwarded to chambers by solicitors acting on behalf of the CFMEU for
the provision of a copy of the forms F16 and F17, a signed copy of the Agreement, and any
covering letter which accompanied the filing of these documents. The request was made on
the basis that those documents were necessary for the CFMEU to adequately prepare for the
hearing on the first day. It was apparent to me that there was an issue about the status of the
CFMEU as bargaining representative and whether it would be appropriate for my chambers to
release these documents. The CFMEU was asked to direct the request to Collinsville’s
solicitors. Those solicitors subsequently indicated they would provide copies of the form
F16, with the name of each employee bargaining representatives redacted, the form F17,
NoRR, and a copy of the Agreement with employee’s names and signatures redacted. They
were not prepared to provide a copy of the letter which accompanied the filing of those
documents. Shortly after, my chambers received another request from solicitors for the
CFMEU asking that the Commission provide the balance of the documents that had been
previously requested including an un-redacted copy of the form F16. My chambers informed
the CFMEU’s solicitors those documents would not be provided and the issue concerning
access to them could be raised at the hearing.
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The hearing, conference, and some procedural matters
[11] The first day of the hearing did not proceed for long by way of a formal hearing. The
matter was adjourned into conference when issues about the documentation which had been
provided to the CFMEU were discussed as well as the manner in which the numerous
contested issues could best be addressed.
[12] I informed the parties of the following matters which had occurred prior to my
assuming carriage of the file. These matters were apparent from my perusal of the email and
other exchanges on the file and the Commission’s electronic file management system. An
email had been sent to the chambers of the member then assigned the application for approval
from a person described as "Legal Assistant CFMEU-Mining and Energy Division Qld
District" referring to the application for approval of the Agreement which had been filed and
asking for "a copy of all of the documents that were lodged with this agreement". On the
following day, the documents were provided to the Union. Another follow-up email was sent
by the same Legal Assistant indicating that the documents provided did not appear to contain
a NoRR and enquired whether one was filed. Shortly after confirmation was given that it had
been filed and a copy provided.2
[13] I informed the parties that, in light of those exchanges, it was apparent that the
CFMEU had in its possession the documents which it had been complaining about not having
received and which related to its submissions that it had been denied procedural fairness.
This did not reflect well on the relevant employees or officers of the Queensland Branch of
the CFMEU. I should note that until I raised this matter in conference it appears that neither
Mr Docking nor his instructing solicitor was aware that their client had previously received
copies of the documents which they had been complaining had been denied them. I should
also note that there were two letters from Collinsville’s solicitors which related to the filing of
the application. It was unclear if the first letter was given to the Union. The second letter had
been given to the Union.
[14] I had perused first the letter which accompanied the filing of the application for
approval and indicated that, in my opinion, there was nothing in it that may warrant a copy
being given to the CFMEU. The Union continued throughout proceedings to insist it be
provided and, on the second day of hearing, I asked Collinsville to do so. Nothing further was
[2014] FWC 5628
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said about its content. I note that the letter addressed the manner in which the Agreement had
been signed and noted that, at the time of filing, there was an issue about those requirements
which had been addressed in proceedings before a Full Bench. The decision at the time had
been reserved. That decision, Peabody Moorvale Pty Ltd v Construction, Forestry, Mining
and Energy Union (CFMEU) (Peabody Moorvale)3 was handed down on 2 April 2014. That
was well before this matter was listed for hearing before me. It had settled the controversy
about signing requirements contained in regulation 2.06A of the Fair Work Regulations 2009
(the Regulations).
[15] The CFMEU would also not accept that the NoRR was filed with the application
despite having previously been advised it was and a copy of it provided. It would not concede
that until I physically showed them the Commission’s file and the place on it where the notice
had been placed.
[16] It was apparent in the conference there was little scope to achieve any consensus
between the parties or to narrow any of the issues raised by the CFMEU.
[17] Without notice having earlier been given, the CFMEU then sought in the conference to
have a number of matters referred to a Full Bench. The application was made under
s.615A(2) of the Act for the President to direct a Full Bench to hear and determine those
matters. Seven matters were identified by the CFMEU as warranting Full Bench
consideration and they are reproduced in paragraph [3] of the President's decision.4 His
Honour was not satisfied it was in the public interest to a direct a Full Bench to hear and
determine the application for approval of the Agreement and dismissed the CFMEU’s s.615A
application.
[18] I note that the matters the CFMEU wanted a Full Bench to consider did not include the
matter which Collinsville and I had identified as being a key issue in this application for
approval of the Agreement. That is, whether the CFMEU was a bargaining representative for
the Agreement.
[19] The date for the second day of hearing was then set, taking into account the
availability of instructing solicitors and counsel. In an attempt to ensure that prior to the next
hearing day it was clear which documents Collinsville and the CFMEU would be seeking to
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rely upon, I issued directions on 3 June 2014. A copy of the directions is contained on the
file. In brief, they identified the documents that had earlier been filed or provided to me on
the first day of the proceedings. Additionally, they required Collinsville and the CFMEU to
confirm that I had identified all of the relevant documents and, if either sought to rely on
additional documents, they were to be filed and served by no later than Tuesday, 10 June
2014. What I had intended to be achieved by the directions did not prove to be wholly
successful, as I later note.
[20] Before turning to address the documents the CFMEU sought to tender I should note
that shortly after the second day of hearing my chambers forwarded an email to solicitors for
Collinsville and the CFMEU providing them with a list of the exhibits which had been
marked in the hearing. The email referred to the transcript of the proceedings and confirmed
that they had been asked to confer in an attempt to reach agreement on documents that should
be marked so as to assist any person reading the transcript. They were advised that after
receipt of their reply I would identify any additional documents I considered needed to be
marked. My chambers received no response to that email from the CFMEU. The solicitors
for Collinsville responded requesting that the documents relating to persons identified as
Employee 1 and Employee 2, comprising a printout from CFMEU membership records and a
page from the Agreement on which the name of the relevant employee was highlighted,
together with part of annexure SS21 to the first affidavit of Mr Smyth (which I refer to later),
should be marked. The email advised that the solicitors had written to the CFMEU solicitors
in relation to this matter and had been advised that the CFMEU had apparently taken the view
that, as it had lodged an appeal against a number of interlocutory rulings I had made during
the hearings, it was not appropriate for the Union to suggest which additional documents
should be marked. It would have been appropriate that advice had also been forwarded to my
chambers. I note the email from Collinsville’s solicitors was copied to the solicitors for the
CFMEU, accordingly, I proceeded on the basis that with an exception I refer to later, I would
not mark any other documents as CFMEU exhibits.5
The documents filed and sought to be tendered and those which were tendered and
marked as exhibits
[21] I marked as an exhibit each of the documents Collinsville sought to tender (some of
which I had asked for), as well as those referred to in the email from its solicitors I have
[2014] FWC 5628
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addressed in paragraph [20]. I considered each document relevant to the matters I am
required to address in relation to this application for approval of the Agreement. For reasons I
later address I was not persuaded the CFMEU should be granted any standing or status in this
application such as to allow it to oppose my receiving any of these documents. I have
annexed a list of those documents to this decision. I do so as not all of them are identified in
the transcript of the proceedings.
[22] The CFMEU had provided documents to me which it asked be dealt with on a
confidential basis. These relate to employees described in the proceedings as Employee 1 and
Employee 2. They comprise an extract of the relevant signature page of the Agreement
bearing the employee’s name and signature and an extract from the CFMEU membership
records identifying the date the employee joined the Union and their current membership
status. As I have identified above, the CFMEU did not seek for me to mark these documents
however Collinsville did. I did not think it appropriate to mark them as Collinsville exhibits
so I have instead marked them for identification purposes. In the case of Employee 1 they
will be MFI 1 and in the case of Employee 2, they will be MFI 2. Each is contained within an
envelope on the file and is marked confidential. I doubt that access to them by Collinsville
will be required as it was accepted before me, and I assume will continue to be the case, that
the documents establish that Employee 1 had not been a member of the Union since 13
December 2013, and Employee 2 was a member from 31 January 2014 onwards. Each of
them had signed the Agreement.
[23] I should interpose here to put into context comments I make below about documents
the CFMEU sought to tender. A significant issue in the proceedings was whether the
CFMEU was a bargaining representative for the Agreement. In my opinion, a ruling about
that matter was necessary to be made early in the proceedings. This was so because if the
CFMEU was a bargaining representative, that would be relevant to rulings about the role it
could properly assume in the proceedings and documents it should be allowed to tender.
[24] Where an employee organisation (union) was a bargaining representative for an
enterprise agreement and that union files a form F18 it would be likely the Commission
would allow it to participate in any hearings, should such hearings be necessary. Of course,
the overwhelming majority of applications for approval of enterprise agreements do not
necessitate a formal hearing in the Commission. In a case where a union is not a bargaining
[2014] FWC 5628
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representative, in my opinion, it has no right to insist it should be heard. No such right can be
identified in the Act. The manner in which it will be heard (including any related
considerations such as whether it can call a witness, tender documents, cross-examine any
witness called by an employer, and/or require the attendance of any employer witness for the
purpose of cross-examination) requires the exercise of the Commission member’s discretion
to allow it to participate in any, or all, of these ways. I return to these considerations again
later in that part of my decision which addresses s.590 of the Act.
[25] The CFMEU sought to tender two affidavits of Mr Stephen Smyth, the District
President of the CFMEU’s Mining and Energy Division, Queensland District Branch.
[26] I refer to the first affidavit. It contains details of Mr Smyth's background within the
industry and the Union, a description of the industrial relationship between CFMEU and
Thiess Pty Ltd (Thiess) during a period in which it operated the mine, the announcement that
Thiess would no longer operate the mine, and negotiations between the Union and Thiess
after that date, meetings and exchanges of correspondence with representatives of
Glencore/Xstrata and discussions about the enterprise agreement covering Thiess transmitting
to the new employer of labour at the mine, meetings and discussions about the terms of a
greenfields agreement that was being negotiated and the cessation of those negotiations,
comments attributed to representatives of Glencore/Xstrata, extracts from newspapers
concerning industrial activity at the Collinsville mine, the role of Open Cut Examiners in
Queensland, the adequacy within the industry of the terms of the Agreement, exchanges
between Mr Smyth and Employee 1 and Employee 2, and exchanges of documents between
Mr Smyth, Mr O'Neill and solicitors for the CFMEU and Collinsville.
[27] The second affidavit of Mr Smyth was forwarded to my chambers after the deadline
set in my directions which I have referred to in paragraph [19] and on the last business day
before the second day of the hearing. The affidavit was not signed or dated and did not have
any of the three exhibits to it which were described as "large documents”. Additionally, my
chambers received an affidavit of Mr Tim Whyte, District Secretary of the CFMEU’s Mining
and Energy Division, Queensland District Branch. It was not signed or dated. Advice was
given that each gentleman would be available for cross-examination at the hearing when the
affidavits would be executed and the annexures provided.
[2014] FWC 5628
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[28] The second affidavit of Mr Smyth was a response to an affidavit of Mr William
McKinstrey which Collinsville had filed. I note in the hearing the CFMEU said its primary
position was that it should be received as an exhibit whether or not the affidavit of Mr
McKinstrey was tendered by Collinsville. The affidavit of Mr McKinstrey had been filed
within the time limit set by my directions and specifically on the basis that it would be sought
to be relied on in the event I was to accept the first affidavit of Mr Smyth.
[29] The affidavit of Mr Whyte also referred to the affidavit of Mr McKinstrey. It
addressed meetings he had with Mr McKinstrey about the termination of the contract with
Thiess to operate the mine and what the owner of the mine was proposing to do at the mine.
It addressed meetings that were held in relation to whether there was a transmission of the
business operated by Thiess to the new mine operator and any ability for the enterprise
agreement covering Thiess to transmit. Negotiations between the CFMEU and
Glencore/Xstrata representatives about a greenfields agreement were also addressed.
[30] The CFMEU sought to tender numerous other documents which I refer to later in this
decision where I identify the rulings I made about the receipt of CMFEU affidavits and other
documents.
The facts
[31] I now set out a number of facts which I am satisfied are established by the evidence
and submissions.
[32] Prior to August 2013, the Collinsville mine was operated by Thiess under a contract
between Thiess and a Glencore/Xstrata company, the owner of the mine. This arrangement
had operated, as I understand it, for many years. It is not clear what the correct name of the
corporate entity which owned the mine was from time to time but for present purposes I will
identify the owner in 2013 as a Glencore/Xstrata Group company.
[33] Thiess and its employees engaged at the Collinsville mine were covered by an
enterprise agreement known as the Thiess Collinsville Coal Mine Enterprise Agreement 2010
(the Thiess Enterprise Agreement).6 The decision approving that agreement notes that the
CFMEU was covered by it.
[2014] FWC 5628
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[34] In early 2013, Thiess was advised that its contract to operate the mine would be
terminated later that year. The termination occurred at the end of August 2013. Thereafter, a
Glencore/Xstrata Group company assumed management rights over the mine. The mine was
placed into care and maintenance mode.
[35] Collinsville, as I understand it, is a company established in 2013 for the particular
purpose of engaging employees who would operate the mine. It is a company within the
Glencore/Xstrata Group.
[36] 21 employees commenced employment on 28 January 2014. They participated in
what was described as an "on-boarding program”.7 The face-to-face component of this
program went for 4 days. Training was given to these new employees in relation to safety and
health matters including fatigue management. Each employee was provided with their own
computer to access Collinsville's online induction, company policies and fatigue management
documents. Employees were also shown how to use touch screens available at the
Collinsville mine which allowed them to access documents, including those relating to fatigue
management, and how to print any materials they required. Supervisors at Collinsville had
access to the intranet and internet from their work computers and could provide any
documentation or information to any employees if requested.
[37] A first attempt at bargaining for an enterprise agreement had commenced on 4
February 2014. I accept the submissions of Collinsville that the process had been
discontinued as an error was identified in some of Collinsville’s procedural documentation.
The error was described as being that the employing company was referred to as "Glencore
Collinsville Coal Operations Pty Limited" (Glencore Collinsville Coal).8 I note that
consistent with this submission, employees had been provided with a letter from Mr O'Neill
about the "Clarification of Name of Employer”.9 In it, the employee was advised that the
name of the company which had employed them from 28 January 2014, and which continued
to employ them was “Collinsville Coal Operations Pty Limited”. The letter advised the
employee that it was a clarification of the original letter of employment and did not in any
way prejudice their employment or commencement date. In the event the employee wished to
have an amended offer of employment letter they were advised to contact Mr O'Neill.
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[38] On 15 February 2014, bargaining commenced in relation to the Agreement. It was
initiated by Collinsville. On that day, as well as 16 and 17 February, employees were
provided with a NoRR. The last NoRR was provided on 17 February 2014. The notice
complied with the requirements of s.174 of the Act, regulation 2.05, and Schedule 2.1 of the
Regulations.
[39] Between the dates of 15, 16 and 17 February 2014 all of the 21 employees completed
and signed notices in which they appointed themselves as their bargaining representative.
Copies of those notices were given to Collinsville.10 Each of those notices was provided to
me and they are contained in an envelope and marked Exhibit Collinsville 8. I read these
notices and took account of the dates on which they were signed and considered the
corresponding names of employees contained within the signature pages of the Agreement.
On this basis, I advised Collinsville and the CFMEU that I would find the following facts
established. Employee 2 was one of the employees who completed and signed a notice
appointing himself as a bargaining representative. He did so on 15 February 2014. Employee
2 had been a member of the CFMEU on and from 31 January 2014. Employee 1 who had
also completed a notice appointing himself as a bargaining representative, and had signed the
Agreement, had ceased to be a member of the CFMEU on 13 December 2013. That date is
prior to the commencement of his employment with Collinsville.
[40] On 20 February 2014, a meeting was held with all relevant employees during which a
copy of the Agreement was given to them. Employees were informed in a memorandum
given to each of them of the date and place at which voting on the Agreement would occur as
well as the voting method (secret written ballot). The vote was to take place on 11 March
2014 between 7am and 8am. The vote was to be by way of “secret written ballot”. A
presentation was given to employees at the meeting about the terms of the Agreement and the
effect of those terms on employees. Employees were invited to ask questions or for any
further clarification of the terms of the Agreement. The presentation was undertaken both by
way of a power point presentation and oral comments to assist employees understanding of
the Agreement. Employees were also invited to contact Mr O’Neill or another identified
person at any time prior to the vote for any additional explanation they required to suit their
particular needs or circumstances, or to understand how the Agreement applied to them in
particular.
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[41] On 3 March 2014, a memorandum to all relevant employees advised of “revised”
voting details. The vote would now take place between 5pm and 6pm on 11 March 2014. The
time was the only amendment to the earlier memorandum dated 20 February 2014.
[42] On 11 March 2014 there were 21 employees who would be covered by the Agreement,
those 21 cast a valid vote and all 21 approved the Agreement.
Was the CFMEU a bargaining representative for the Agreement?
[43] The first question I address is whether the CFMEU was a bargaining representative for
the Agreement. Sections 176 and 178 of the Act are relevant to this consideration. I set out the
applicable extracts from those sections:
“176 Bargaining representatives for proposed enterprise agreements that are not
greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining
representatives for a proposed enterprise agreement that is not a greenfields
agreement:
(a) an employer that will be covered by the agreement is a bargaining
representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee
who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement
in relation to which a low-paid authorisation is in operation—the
organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or
her bargaining representative for the agreement, or has revoked the status of
the organisation as his or her bargaining representative for the agreement under
subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be
covered by the agreement if the employee appoints, in writing, the person as
his or her bargaining representative for the agreement;
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(d) a person is a bargaining representative of an employer that will be
covered by the agreement if the employer appoints, in writing, the person as his
or her bargaining representative for the agreement.
......
(3) Despite subsections (1) and (2):
(a) an employee organisation; or
(b) an official of an employee organisation (whether acting in that capacity
or otherwise);
cannot be a bargaining representative of an employee unless the organisation is
entitled to represent the industrial interests of the employee in relation to work that
will be performed under the agreement.
Employee may appoint himself or herself
(4) To avoid doubt and despite subsection (3), an employee who will be covered
by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her
bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may
be made for bargaining orders that require bargaining representatives to meet
the good faith bargaining requirements (see section 229).
178 Appointment of bargaining representatives—other matters
When appointment of a bargaining representative comes into force
(1) An appointment of a bargaining representative comes into force on the day
specified in the instrument of appointment.
Copies of instruments of appointment must be given
(2) A copy of an instrument of appointment of a bargaining representative for a
proposed enterprise agreement must:
(a) for an appointment made by an employee who will be covered by the
agreement—be given to the employee’s employer; and
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(b) for an appointment made by an employer that will be covered by a
proposed enterprise agreement that is not a greenfields agreement—be given,
on request, to a bargaining representative of an employee who will be covered
by the agreement.
Regulations may prescribe matters relating to qualifications and appointment
(3) The regulations may prescribe matters relating to the qualifications or
appointment of bargaining representatives.”
[44] I have earlier found that the only employee who was a member of the CFMEU at any
relevant time was Employee 2. He appointed himself as a bargaining representative on 15
February 2014 and gave the notice of appointment to Collinsville. Under s.178, the
appointment came into effect on 15 February. I find that at no time did the CFMEU assume
the status of being a default bargaining representative as described in s.176(1)(b).
[45] The CFMEU asserted it was a bargaining representative between 31 January 2014
until 15 February 2014 or even after that date.11 I have no evidence upon which I can find the
CFMEU was a default bargaining representative at any time during that span of dates.
Assuming it was at some time earlier in 2014 that status would not have arisen in respect to
the Agreement. It appears that any earlier bargaining for a proposed enterprise agreement was
one between Glencore Collinsville Coal and its employees. Any status the CFMEU may have
assumed in respect of an agreement with that company, and its employees, did not survive the
cessation of bargaining for that agreement and the initiation of bargaining for the Agreement.
The s.183 notice filed by the CFMEU
[46] The CFMEU filed a notice pursuant to s.183 of the Act stating that if the Agreement
was to be approved it wanted to be covered by it. Section 183 is in the following terms:
“183 Entitlement of an employee organisation to have an enterprise agreement
cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an
employee organisation that was a bargaining representative for the proposed enterprise
[2014] FWC 5628
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agreement concerned may give the FWC a written notice stating that the organisation
wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer
covered by the enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the
agreement covers the employee organisation (see subsection 201(2)).”
[47] In my opinion, as the CFMEU was not a bargaining representative for the Agreement,
it has no standing to file a notice under s.183 of the Act. It did not have that status at any time
from 15 February 2014 and did not have it on the date the Agreement was made. As a
consequence of this finding I have decided that the form F18 filed by the CFMEU is not valid
and should not be taken into account in my consideration about whether the Agreement
should be approved. If it be necessary, I would also rule that the CFMEU had no standing
under rule 24(3) of the Fair Work Commission Rules 2013 (the Rules) to file the form F18.
Procedural rulings - affidavits of union witnesses, request that I require Mr O’Neill to
attend to be cross-examined, and reliance on rulings made in Peabody Moorvale
[48] I refused to allow the tender of the two affidavits of Mr Smyth and the affidavit of Mr
Whyte. This ruling is allied to, and consequential upon, my ruling that the CFMEU was not a
bargaining representative for the Agreement and also my ruling under s.590 of the Act. This
ruling was about the matters which I allowed the CFMEU to make submissions and provide
documentation or information. I was not persuaded it should be given a role akin to a party,
respondent or intervener to, or in respect of an application, such as may entitle it to call a
witness and make submissions. I was not persuaded, in the circumstances of this matter, it
should be allowed to tender any evidence. I address my reasons later in this decision in that
part which deals with s.590 of the Act.
[49] For present purposes, I will here identify other reasons why I was not persuaded that
the affidavits the CFMEU sought to tender should be received.
[50] In the case of Mr Smyth’s first affidavit, Collinsville described it as largely containing
irrelevant and hearsay material. I agree. The only potential relevance may have been that
attributed to Employee 1 and Employee 2.
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[51] Mr Smyth referred to what the two employees had said to him and/or had been
contained in text messages. The CFMEU opposed the release of the names of these employees
to Collinsville and did not intend to call either of them to give evidence. It follows that
Collinsville would be unable to test the truth of any of the comments attributed to the
employees. There was no suggestion that either of the employees was unavailable to give
evidence.
[52] To allow Mr Smyth's affidavit or extracts of exchanges with Employee 1 and
Employee 2 would be unfairly prejudicial to Collinsville. The value of the evidence, such as
it is, does not outweigh that prejudice. I also noted Mr Smyth’s evidence of what he said and
what had been said to him was qualified by “words to the effect...”. I was not persuaded the
extracts from Mr Smyth’s affidavit which attribute oral comments and mobile phone text
messages to the two employees was of such probative value I should seriously consider it
outweighed the prejudice to Collinsville by it being received. I also note that both employees
said they knew they were entitled to have the CFMEU as their bargaining representative.
This may not have accurately represented the legal position of Employee 1, but I do not need
to consider that further here. The right of Employee 2 to be represented by the CFMEU was
also made clear from the terms of the NoRR. Both employees signed the notice appointing
themselves as a bargaining representative; both voted in favour of the Agreement and signed
it. Neither sought to put anything to me for consideration. There is nothing to suggest either
of these employees (or any other employee) has asked the CFMEU to oppose approval of the
Agreement.
[53] I next refer to the request made in Mr Smyth’s first affidavit for me to require
Collinsville to provide the CFMEU’s solicitors with material identified in the draft form F52
titled “Order requiring production of documents etc. to the Fair Work Commission” (draft
order). A schedule to the draft order listed a broad range of documents that were sought.
They included documents relating to the offer of employment and acceptance by each of the
21 employees who voted for the Agreement, their start date, classification and letter of
engagement. Records were also sought which related to the provision to those employees of
the NoRR, any meetings held both at the time of provision of the notice and subsequently
including any script, notes, memoranda, power point presentations, slides and questions asked
and answered. Also requested were records of any communications between Collinsville and
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any related entities (that term was defined by way of the identification of a number of
Glencore/Xstrata Group companies) in relation to the exclusion of the CFMEU or the
limitation of its influence at the mine.
[54] The CFMEU submitted that I should require Collinsville to produce these documents
and not proceed to hear the application for approval the Agreement until they were produced.
It submitted that I had the power to do so under s.590(2)(c) of the Act. I note that section
provides that the Commission may inform itself in relation to any matter before it in such
manner as it considers appropriate. I accept that if I was persuaded it appropriate to do so I
would have power to require the production of documents of the nature of those sought by the
CFMEU. In this case, I was not persuaded that I should do so. In an application for approval
of an enterprise agreement, and where the request for documents to be produced is not made
by a bargaining representative, or any employee covered by the agreement, it is a question of
whether, in the exercise of my discretion, the documents sought should be provided.
[55] The scope of the material sought is very broad. The relevance of many of the
documents is doubtful. It is not unfair to describe it, as did Collinsville, as reflecting a
general fishing expedition in a desperate attempt to build a case.12 There is no evidence of
any employee support for CFMEU doing whatever it can to ensure approval of the Agreement
is refused.
[56] I was also concerned about the breadth of documents that were sought in relation to
employees who were not CFMEU members. It would not be appropriate for those documents
to be released in the absence of an opportunity being given to those employees to be heard as
to whether they opposed the release.
[57] I was not persuaded that it was necessary for the purposes of informing me in relation
to the statutory considerations in Part 2-4 of the Act about which I am required to be satisfied,
that I should require Collinsville to produce the documents requested. The forms F16 and
F17, and submissions made by Collinsville, adequately addressed each of the considerations
the Act requires me to give attention in deciding whether or not to approve the Agreement.
[58] Further, I note that any documents or records produced under s.590(2)(c) are to be
provided to the Commission. The request here made by the CFMEU’s solicitors was to
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require production of the documents to those solicitors at an address which appears to be their
Brisbane office.
[59] Next, I note the terms of rule 54(1) of the Rules refers to "a party in a matter before the
Commission" being able to lodge a draft order for documents to be produced and to request
the Commission make such an order. The rule, consistent with s.590(2)(c) of the Act,
envisages that the documents that are required to be produced are to be provided to the
Commission.
[60] In light of my earlier findings about the request for documents, it is not necessary for
me to make any final ruling about whether the CFMEU is, in terms of the rule, a “party”.
Collinsville and the CFMEU made submissions as to whether I should consider the CFMEU
to be, in terms of rule 54(1), a "party". I accept that the word is not defined in the Rules or the
Act and note that the power in s.590(2) refers not to a “party” but to a "person".
[61] I return to Mr Smyth’s first affidavit. I have earlier indicated the CFMEU did not
respond to my request made at the conclusion of the hearing to identify any documents the
parties agreed should marked. This puts me in a difficult position in relation to marking as a
CFMEU exhibit any part of Mr Smyth’s affidavit which might assist in the application of the
better off overall test. Annexure SS21 to the first affidavit of Mr Smyth addressed that
consideration. I have decided to mark that annexure as MFI 3. I return to this annexure when
I address the better off overall test.
[62] I have also decided that despite the position taken by the CFMEU, I can and should
mark the written submissions it filed. Strictly speaking, they are not exhibits however I did
mark the submissions of Collinsville and in order to understand the transcript, and these
reasons, I have decided to do likewise in case of the CFMEU. I have marked the first
submissions filed on 30 April 2014 as CFMEU 1 and those titled “Amended CFMEU Outline
of Submissions” filed on 10 June 2014, as CFMEU 2.
[63] It is not necessary for me to refer in any detail to the content of Mr Smyth's second
affidavit. Even if the CFMEU was permitted to call witness evidence in this application the
affidavit did not contain matters which, in my opinion, would assist me in the application of
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the statutory tests I am required to apply in relation to the approval of the Agreement. For
similar reasons I was not persuaded to accept any part of the affidavit of Mr Whyte.
[64] Finally, I should note that as I did not allow the tender of Mr Smyth's first affidavit the
tender of Mr McKinstrey’s affidavit was not pressed by Collinsville.
[65] I should here record that I also declined to receive and mark a chronology and extracts
from the Australian Securities and Investment Commission’s database concerning Collinsville
and a number of companies described as being within the Glencore/Xstrata Group. I also
declined to accept extracts from the website of Xstrata Coal. I also declined to mark
documents the CFMEU indicated it had only served on Collinsville on the morning of the
second hearing day. They comprised an extract from the annual report of the Department of
Natural Resources, “ABC News summaries” concerning a Thiess and CFMEU industrial
dispute in 2010, and an order made by Justice Logan in August 2010. I was not persuaded
that any of these documents would assist me in my application of the relevant statutory tests
which I am obliged to apply in relation to deciding whether to approve the Agreement.
[66] The CFMEU requested that I require Mr O'Neill to be called so that it could cross
examine him. Collinsville did not intend to call Mr O'Neill and relied on the content of the
forms F16 and F17 which he had completed. I accept that if I had formed the view I would be
assisted by his being called to give evidence, or that the CFMEU should be able to cross
examine him, s.590 of the Act would appear to be sufficiently broad to enable me to so rule.
However, I declined to exercise my discretion to require Mr O’Neill to give evidence and be
cross-examined by the CFMEU.
[67] In support of its request that Mr O’Neill be called the CFMEU submitted that a similar
request had been made and granted in Peabody Moorvale.13 These proceedings were before a
Full Bench and concerned two discrete issues that had arisen in an application for approval of
an enterprise agreement titled the Peabody Energy Australia Moorvale Enterprise Agreement
2013. The application for approval of that agreement was referred to a Full Bench as it
appeared a number of first instance decisions may be challenged and warranted consideration
at a Full Bench level. The reasons for decision address two key issues. The first was the
validity of the NoRR there provided by the employer to its employees and the second was
about compliance with the requirements in the Regulations for signing of an enterprise
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agreement. The CFMEU referred to procedural rulings it submitted were made in that case in
support of the same, or a comparable ruling, being made by me in this matter. The reasons for
decision of the Full Bench do not address any procedural rulings made by it. There was no
need for it to do so. As I understand it, there was no contest about the rulings that were made.
The matter proceeded by way of a test case and, consistent with this, the employer, the
CFMEU, the Minister for Employment, and Ai Group made submissions. It is not apparent to
me that there was any opposition to each of these persons or entities being heard or the
attendance of an employer witness to give evidence.
[68] In light of my ruling that the CFMEU was not a bargaining representative for the
Agreement, and that it would be limited to assisting me with the better off overall test, there
was no basis established which persuaded me that the CFMEU was entitled to demand the
attendance of a witness so as to give it an opportunity to cross-examine that person. No
sufficient discretionary grounds were made out to persuade me to require Mr O'Neill to give
oral evidence.
[69] The CFMEU also indicated that it wished to cross examine Mr Olive. Nothing more
was said as to why I should require him to give oral evidence. There was no suggestion
anything addressed by him in his affidavit was inaccurate or required clarification. In the
exercise of my discretion I was not persuaded that any ground was made out to warrant
Collinsville being required to call Mr Olive so as to enable the CFMEU to cross examine him.
[70] I should also note that on the second day of the hearing the CFMEU asked me to
adjourn the proceedings so as to allow it to file an appeal against several of the procedural
rulings I had made. I was not persuaded to grant the adjournment. The CFMEU was not a
bargaining representative for the Agreement and both Collinsville and the employees who
voted for it were entitled to know the fate of the application for its approval as soon as
practicable.
[71] I also decided it was better that I publish my decision so that both Collinsville and the
CFMEU were aware of the final outcome of the hearing together with my reasons for certain
procedural rulings that I made in the course of the hearing. Each could then consider whether
to pursue an appeal. Matters which one or the other may contest could be heard at the same
time rather than running the risk that there might be more than one round of appeals.
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Section 590 - basis upon which the CFMEU may be heard
[72] Section 590(1) of the Act provides that the Commission may, except as provided by
the Act, inform itself in relation to any matter before it in such manner as it considers
appropriate.14 Section 590(2) identifies a number of ways in which the Commission may
inform itself. They relevantly include inviting, subject to terms and conditions determined by
the Commission, oral or written submissions and requiring a person to provide documents.
[73] The CFMEU submits that it should be able to participate in these proceedings on the
basis it is to be treated as being a “person aggrieved” as that term is interpreted in appeal
proceedings. It submits that it is "absurd, capricious and irrational" to suggest that the
CFMEU could be a person aggrieved for the purposes of an appeal but not at first instance.15
[74] The CFMEU submitted it is the key or major union in the black coal mining industry
and also a key or major union in respect of the Black Coal Mining Award. It submits that it is
concerned with obtaining and maintaining reasonable terms and conditions of employment in
the industry. It had participated in discussions with a Glencore/Xstrata Group company in
relation to an enterprise agreement that might be made upon the termination of the Thiess
contract to operate the mine. When Thiess operated the mine the CFMEU had a large number
of members who were employed there and it was likely it would have members at the mine in
the future. It had participated in these proceedings for approval of the Agreement and had
been required by me to file submissions. Finally, it relied on its having been a default
bargaining representative for the Agreement.
[75] I was not persuaded by the submissions to allow the CFMEU to have the role it sought
in these proceedings. My reasons for this decision are largely those relied upon by
Collinsville and contained within Collinsville 11 at paragraphs 6 to 27, and 32 to 34. I say
largely, as Collinsville's primary position was, that the CFMEU should not be heard at all,
however, I was prepared to invite the Union to make submissions in relation to one matter, the
better off overall test. It will be sufficient for me to summarise the grounds contained in
Collinsville’s submissions which persuaded me that the CFMEU should be granted only that
limited role.
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[76] Firstly, the scheme of the Act in respect to bargaining and making enterprise
agreements is detailed and comprehensive. The Act provides a detailed regime for pre-
approval steps and considerations which the Commission must give to the content of an
agreement prior to approving it. I must do so regardless of whether a union, an employee or
employer addresses any of the relevant provisions of the Act.
[77] The present application does not warrant or require the CFMEU’s participation. The
Commission does not need the assistance of the CFMEU to ensure that it properly applies the
statutory considerations required by the Act.
[78] Other than in the case of a greenfields agreement, enterprise agreements are made
between an employer and its employees. The CFMEU is not a bargaining representative for
the Agreement and is not entitled to insist on it being treated in the same manner in which a
union, which was a bargaining representative, might properly be treated in the context of an
application for approval of an agreement. There is nothing in the Act that suggests that it
should be given an equivalent status.
[79] The CFMEU should not be allowed to be heard to oppose the Agreement. It does not
do so as a representative of any of the employees who voted in favour of the Agreement. The
one member it had appointed himself as his bargaining representative and voted in favour of
the Agreement. He voted together with his other colleagues in favour of the Agreement. The
CFMEU has not established it has a relevant interest in the application nor any ground which
warrants its participation.
[80] In all the circumstances, and other than in respect to the better off overall test, I was
not persuaded that it would be appropriate to allow the CFMEU to participate in the hearing
by making submissions or leading evidence with a view to persuading me that I should refuse
to approve the Agreement.
[81] In respect to my ruling to allow the CFMEU to make submissions about the better off
overall test I note the reference in s.590(2)(b) to the Commission inviting oral or written
submissions, subject to any terms and conditions. This makes it clear, in my opinion, that I
was entitled to confine the issue or matter upon which I would hear the CFMEU.
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[82] Furthermore, my allowing the Union to be heard on the discrete issue about the
application of the better off overall test did not result in its status thereby turning into
something akin to a party or a respondent to the application for approval. It assumes no
rights, standing or other privileges as a result of that ruling. Nor did it assume any such status
because I directed it to file its submissions and evidence as to the grounds upon which it
asserted it was, or should be, entitled to be heard. In this context, it was also demanding
Collinsville produce documents to it and volunteer information it sought. It was not apparent
what entitlement the CFMEU had to make these various demands. I decided that as
Collinsville had filed forms F16 and F17 and the Agreement, it had done, at that stage, all
required of it by the Rules. It was appropriate to require the CFMEU to provide its argument
in response to the matters addressed in those forms and the Agreement. Requiring the Union
to do so did not, in my opinion, elevate its standing to be heard in the hearing or bestow any
right or entitlement upon it.
Considerations under ss186, 187 and 188
[83] I turn first to section 188 of the Act. It is in these terms:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by
the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied
with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested
to approve an enterprise agreement until 21 days after the last notice of
employee representational rights is given); and
(b) the agreement was made in accordance with whichever of
subsection 182(1) or (2) applies (those subsections deal with the making of
different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has
not been genuinely agreed to by the employees.”
Access to documents and incorporation considerations
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[84] I refer first to the requirement in s.188(a)(i) that subsection 180(2) of the Act has been
complied with. Section 180(2) is in these terms:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
...
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant
employees) employed at the time who will be covered by the agreement are
given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the
agreement, to a copy of those materials.”
[85] I now set out those clauses of the Agreement that I have considered in coming to my
conclusion about whether s.180(2) was complied with. I first refer to clause 3. It provides:
"3. RELATIONSHIP WITH NES, AWARDS, AGREEMENTS ETC
This Agreement overrides and replaces in its entirety the Black Coal Mining Industry
Award 2010 and any successor award or other awards, orders and decisions that may
have otherwise applied.
This Agreement does not exclude the National Employment Standards (“NES”) or any
provision of the NES which shall have effect in accordance with the Fair Work Act
2009 (“Act”).”
[86] Next I refer to clause 14.2. It deals with the topic of long service leave. It provides for
the rate at which employees are to accrue long service leave, eligibility to take such leave, and
the manner in which the payment for that leave will be made. It also provides for
entitlements, after a certain period of qualifying service, to payments upon termination of
employment.
[87] The following sentence then appears within the clause:
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"Any other entitlements will be subject to approval by the industry fund. This clause
does not exclude any entitlements provided for in the Coal Mining Industry (Long
Service Leave Funding) Act 1992 or other superseding Act."
(Long Service Leave Funding Act)
[88] I have given consideration to whether the wording of these two clauses is such as to
incorporate the NES, the Black Coal Mining Award or the Long Service Leave Funding Act
into the Agreement and, if so, whether I am satisfied reasonable steps were taken by
Collinsville to give a copy of those documents to employees or to allow access to them.
[89] I am not persuaded that the terms of either of these clauses are such as to incorporate
the identified documents into the Agreement.
[90] Clause 3 is not drafted in a way so as to incorporate the terms of the Black Coal
Mining Award. The manner in which the clause is drafted suggests that the terms of that
modern award stand outside of, and separate to the Agreement. It is not intended to be part of
the Agreement.
[91] For similar reasons, I am not persuaded that either the NES or the Long Service Leave
Funding Act are incorporated into the Agreement. Furthermore, the reference in clause 3 to
the NES is consistent with provisions of the Act which deal with the manner in which the
NES and modern awards interact. That wording does not incorporate any of the terms of the
NES into the Agreement.
[92] If I am wrong in my finding that neither the Black Coal Mining Award or Long
Service Leave Funding Act are incorporated into the Agreement then I consider, consistent
with s.180(2) of the Act, Collinsville has taken all reasonable steps to ensure that relevant
employees had access to a copy of the materials referred to in these clauses. In this respect, I
would consider myself obliged to apply the reasons given by a Full Bench; McDonald's
Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association (McDonald’s).16
That Full Bench decision found that a South Australian Long Service Leave Act was
incorporated into the enterprise agreement there being considered. The Full Bench
commented that:
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“We have reviewed the terms of the Agreement and agree with that submission.
References in the Agreement to the NES do not incorporate the terms of the NES into
the Agreement. The South Australian Long Service Leave Act 1987 is however
incorporated because the terms of the agreement provide for its application in Broken
Hill - which is beyond its legislative effect. The benefits are greater than those
provided by New South Wales legislation. The laws of the land are available to
Australian citizens in a variety of ways. We find that the employer was not required to
take any further steps to ensure that the relevant employees had access to the South
Australian legislation. Because the legislation is freely available in the public domain,
no further steps were required.”17
[93] Before leaving this issue I should note that in a Full Bench decision in which I
participated being National Tertiary Education Industry Union v University of New South
Wales, we said that we had not been persuaded by the submissions put to us that they
established a proper basis for us to revisit the approach taken in McDonald's. We went on to
make the following comment:
"We do acknowledge however that there may be cases where the characteristics of the
workplace and the composition of the workforce may require more than what that Full
Bench indicated was adequate. This is not such a case."18
[94] If it was necessary I would have made the same comments in relation to this matter.
In this consideration the evidence given in the affidavit of Mr Olive would have also been
relevant.
The fatigue management issue
[95] Clause 14.6 deals with the topic of Community Service Leave. It provides for
payments an employee, who is a member of a recognised emergency management body and
called out to engage in any emergency management activity, is to receive. One sentence in
the clause should be reproduced. It is in the following terms:
“Where an employee attends such an incident during working hours or pre and post
shift hours, their attendance for work will be governed by the Company's Fatigue
Management Policy".
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[96] In the case of the terms of this policy I would agree with the submissions of
Collinsville, which in turn rely on the affidavit of Mr Olive. Each of the 21 employee
bargaining representatives was shown a copy of the policy and how to access it on
Collinsville’s intranet. Computer access was freely available to all employees at the mine
such as to enable employees access to any policies or operating procedures. There is nothing
to suggest that access was not freely available during the access period. I accept
Collinsville’s statement in its form F17 that it was.
[97] I am satisfied Collinsville took all reasonable steps to ensure that during the access
period employees had access to a copy of the fatigue management policy.
[98] I rely on the form F17 and Collinsville’s submissions in respect to compliance with all
other requirements contained in s.188(a) and (b).
[99] I turn now to s.188(c). I am not persuaded there are any other reasonable grounds for
believing that the Agreement has not been genuinely agreed to by the employees. In this
respect I adopt the submissions of Collinsville at paragraphs 61 to 63 of its first written
submissions,19 and submissions made by Collinsville at the hearing.
[100] I should note that in reference to s.188(c), the CFMEU sought to make submissions
about what it described as the “Glencore strategy” to remove, or at least limit the role of the
CFMEU could play at its work sites. I must observe that it is not readily apparent how the
course of negotiations with the CFMEU for a greenfields agreement to cover the Collinsville
mine reflects any such strategy however, more importantly, I was not inclined to allow the
submission to be developed in the context of this application for approval of the Agreement.
As I have earlier indicated, all relevant considerations under the Act have been addressed by
Collinsville. There was no evidence of any application being made by the CFMEU for good
faith bargaining orders (assuming the CFMEU could establish it had the standing to apply for
such orders). This is not the occasion to consider the existence, or the details, of any strategy
the CFMEU asserts, nor whether its pursuit or implementation would be consistent with the
Act.
Section 186(2)(d) and 193 - the better off overall test
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[101] As I had earlier indicated, I ruled that I would allow the CFMEU to make submissions
about whether the Agreement passed the better off overall test. I did so as I had assumed that
in this matter the CFMEU may be of assistance in identifying any provisions of the relevant
modern award, the Black Coal Mining Award, to which particular attention should be given in
the process of deciding whether or not I was satisfied, as required by section 186(2)(d), that
the Agreement passes the better off overall test. The manner in which that test is to be applied
is contained in s.193 of the Act. I reproduce that section:
“193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off
overall test under this section if the FWC is satisfied, as at the test time, that each
award covered employee, and each prospective award covered employee, for the
agreement would be better off overall if the agreement applied to the employee than if
the relevant modern award applied to the employee.
FWC must disregard individual flexibility arrangement
(2) If, under the flexibility term in the relevant modern award, an individual flexibility
arrangement has been agreed to by an award covered employee and his or her
employer, the FWC must disregard the individual flexibility arrangement for the
purposes of determining whether the agreement passes the better off overall test.
When a greenfields agreement passes the better off overall test
(3) A greenfields agreement passes the better off overall test under this section if the
FWC is satisfied, as at the test time, that each prospective award covered employee for
the agreement would be better off overall if the agreement applied to the employee
than if the relevant modern award applied to the employee.
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
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(b) at the test time, is covered by a modern award (the relevant modern award)
that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to
perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person
who, if he or she were an employee at the test time of an employer covered by the
agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would
perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by the FWC
was made under section 185.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better
off overall test, if a class of employees to which a particular employee belongs would
be better off if the agreement applied to that class than if the relevant modern award
applied to that class, the FWC is entitled to assume, in the absence of evidence to the
contrary, that the employee would be better off overall if the agreement applied to the
employee.”
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[102] In respect of the better off overall test the CFMEU indicated that it relied on annexure
SS21 to Mr Smyth’s first affidavit. I have earlier indicated I have marked this MFI 3. That
document is in the form of a chart which sets out clauses of the Agreement and what is
submitted to be corresponding or comparable clauses in the Black Coal Mining Award, the
Glencore Collinsville Mining Pty Ltd Greenfields Enterprise Agreement 2013 (the Glencore
Greenfields Agreement) and the Thiess Enterprise Agreement.
[103] The Glencore Greenfields Agreement, as the name suggests, is the draft agreement
which a company then referred to as Glencore Collinsville Mining Pty Ltd and the CFMEU
had been negotiating in 2013 when it was known that the mine was no longer to be operated
by Thiess. It was proposed at that time a Glencore/Xstrata Group company would operate the
mine with its own directly engaged employees.
[104] The Thiess Enterprise Agreement is, as I have earlier noted, the relevant enterprise
agreement which covered Thiess and its employees who were engaged at the Collinsville
mine when Thiess operated the mine.
[105] I observed in the hearing that I would not have considered either the Glencore
Greenfields Agreement or the Thiess Enterprise Agreement relevant to the better off overall
test. The CFMEU submitted that they were pressed but that it did not want to be heard
further.20 It is difficult to understand this submission in light of the terms of s.186(2)(d) and
s.193. In my opinion, a proper application of the requirements of those sections necessitates
my consideration of the terms of the Agreement with the Black Coal Mining Award only. It
does not necessitate a comparison with the other two agreements referred to above.
[106] I have considered the analysis undertaken by Collinsville directed to persuading me
that the Agreement passes the better off overall test.21 In this respect, I also note the monetary
calculations that are reflected in Appendix 1 to that document. They reflect payments that
would be required under that Black Coal Mining Award with those which will be payable
under the Agreement in respect of the various shifts undertaken by employees. In each case
the payments under the Agreement reflect an amount significantly in excess of that payable
under the Black Coal Mining Award. Additionally, I also rely on the document tendered by
Collinsville which addresses comments that were made in annexure SS21 to the affidavit of
Mr Stephen Smyth which I have referred to above.22
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[107] Having considered those documents I accept, as Collinsville submitted, that
considering all of the provisions of the Agreement, and the remuneration components in
particular, each class of employee covered by the Agreement will be better off overall under it
than under the Black Coal Mining Award.
Other s.186, 187 and mandatory requirements
[108] Subject to the matters I address next, and undertakings relating to them, in respect to
all other relevant considerations to which I must give attention, as required by ss.186 and 187,
I adopt the submissions of Collinsville. I am satisfied both the general requirements in s.186
and the additional requirement in s.187 have been met. In relation to the mandatory terms
which ss.202 to 205 of the Act require be contained in an enterprise agreement I am satisfied
the Agreement contains such terms.
Undertakings sought
[109] I have given consideration to the terms of clause 20 of the Agreement which is the
dispute resolution procedure clause. Such a clause must comply with s.186(6) of the Act,
which is in the following terms:
“186 When the FWC must approve an enterprise agreement—general
requirements
...
Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows the FWC, or another
person who is independent of the employers, employees or employee
organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement
for the purposes of that procedure.”
[2014] FWC 5628
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[110] The concern I have is whether clause 20 allows for representation in accordance with
s.186(6)(b). The issue is whether the entitlement to be represented under the Agreement need
only be available when a dispute reaches Step 2.
[111] I do not agree with the submissions of Collinsville that a dispute under its procedure
only arises after Step 1 has been completed. The grievance or dispute envisaged in the
opening words to the clause has already arisen prior to Step 1 being invoked by an employee.
In this respect, I see no reason to distinguish either Steps 1 or 2. In my opinion, the
entitlement to be represented arises at the same time the grievance or dispute arises.
[112] This concern is one which can be addressed by an undertaking. Section 190 of the Act
envisages that if the Commission has any concern that an agreement does not meet any of the
requirements as set out in ss.186 and 187, an undertaking may be given to meet that concern.
In this case, I seek an undertaking from Collinsville that an employee will be entitled to be
represented at each of the steps in the dispute resolution procedure. Under s.190(4) I am not
able to accept an undertaking unless I have sought the views of each person who I know is a
bargaining representative for the Agreement. In this case I know that there were 21
employees who were bargaining representatives.
[113] Collinsville should provide an undertaking to me consistent with the concerns I have
expressed in the previous paragraph and, at the same time, a copy of it should be provided to
each of the 21 bargaining representatives. Upon receipt of the undertaking I will take any
other steps I consider may be necessary to be satisfied the undertaking was brought to the
relevant employees’ attention and they have had an opportunity to express any view about it. I
observe that in light of the nature of the undertaking I seek it is unlikely that any employee
would oppose it as it provides an additional entitlement to the employee. Nonetheless, I am
required by the Act to seek the views of those employees. Further, the following two
undertakings I seek should also be dealt with in this same manner.
[114] The following matters arise in the context of my consideration of s.186(2)(c) of the
Act. I seek an undertaking about the clause 14.1 which deals with annual leave. The first
sentence of that clause provides that:
“Employees are entitled to 5 weeks (175 ordinary hours) annual leave per annum.”
[2014] FWC 5628
33
[115] I do note the reference in clause 3 to the Agreement that it is not to be read as
excluding the NES, however I have concerns that any person reading the first sentence of
clause 14.1 may not readily understand that the entitlement there referred to will accrue
progressively, in accordance with s.87(2) of the Act. That section, which forms part of the
NES, provides that:
“87 Entitlement to annual leave
...
Accrual of leave
(2) An employee’s entitlement to paid annual leave accrues progressively during a
year of service according to the employee’s ordinary hours of work, and accumulates
from year to year.
Note: If an employee’s employment ends during what would otherwise have been a
year of service, the employee accrues paid annual leave up to when the
employment ends.”
[116] Collinsville should provide an undertaking that clause 14.1 will be applied in a manner
consistent with s.87(2) of the Act.
[117] I next refer to clause 14.3.1. It deals with Personal/Carer’s leave. The first sentence
provides that:
“Employees will accrue 105 ordinary hours of personal/carer’s leave per year without
limitation.”
[118] Section 96(2) of the Act provides:
“96 Entitlement to paid personal/carer’s leave
...
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively
during a year of service according to the employee’s ordinary hours of work, and
accumulates from year to year.”
[2014] FWC 5628
34
[119] I have similar concerns about this clause to those I expressed about clause 14.1.
Collinsville should provide an undertaking that clause 14.3.1 will be applied in a manner
consistent with s.96(2) of the Act.
Appeal and decision of Vice President Hatcher
[120] I have earlier referred to an appeal lodged by the CFMEU against a number of rulings
I made in the course of the hearings of this application for approval of the Agreement. A stay
order was sought in that appeal. A hearing in respect to that application was undertaken by
Vice President Hatcher. His Honour decided that the balance of convenience favoured the
refusal of the stay. In light of that ruling he was not required to consider whether the
CFMEU’s appeal was arguable and with some reasonable prospects of success. The
CFMEU’s application for a stay order was dismissed.23
Conclusion
[121] Subject to receipt of the undertakings I have sought, and my being satisfied the
employee bargaining representatives have had an opportunity to express their views about the
undertakings, I intend to approve the Agreement.
SENIOR DEPUTY PRESIDENT
Appearances
J Murdoch QC with I Humphreys for the applicant
B Docking of Counsel with E Thornton for the CFMEU
Hearing details:
2014.
Brisbane:
May 2;
June 16.
OF THE FAIR WORK ..
JUSTRALL MMISSION THE SE,
[2014] FWC 5628
35
Annexure A
Index of Exhibits
Collinsville
Collinsville 1 Affidavit of service of Mr Phillip Justin Nobes affirmed on 16 June 2014
Collinsville 2 Memo of Voting Method, Time and Place dated 3 March 2014
Collinsville 3 Memo of Voting Method, Time and Place dated 20 February 2014
Collinsville 4
Letter clarifying the company name of the employer to employee dated 15
February 2014
Collinsville 5
Form 16 - Application for approval of the Collinsville Coal Operations
Enterprise Agreement 2014 filed on 13 March 2014
Collinsville 6
Form 17 - Employer’s statutory declaration in support of an application for
approval of an enterprise agreement filed on 13 March 2014
Collinsville 7 Notice of Employee Representational Rights filed on 13 March 2014
Collinsville 8
Appointment of Employee Bargaining Representative Forms (21)
(confidential)
Collinsville 9
Collinsville Coal Operations Enterprise Agreement 2014 filed on 13 March
2014
Collinsville 10 Outline of submissions by the applicant filed on 1 May 2014
Collinsville 11 Further outline of submissions filed on 10 June 2014
Collinsville 12 Affidavit of Mr David Olive affirmed on 1 May 2014
Collinsville 13
Collinsville Coal Operations Enterprise Agreement 2014 - BOOT Analysis
filed on 1 May 2014
Collinsville 14
Collinsville Coal’s comments regarding Annexure SS21 of the affidavit of
Mr Stephen Smyth filed on 10 June 2014
Marked for Identification
MFI 1 Contents of the envelope for Employee 1 (confidential)
MFI 2 Contents of the envelope for Employee 2 (confidential)
MFI 3 SS21 Annexure to the Affidavit of Mr Stephen Smyth affirmed on 30 April
[2014] FWC 5628
36
2014 (but only that part which refers to the Black Coal Mining Industry
Award 2010)
Construction, Forestry, Mining and Energy Union
CFMEU 1 CFMEU’s Outline of Submissions filed on 30 April 2014
CFMEU 2 Amended CFMEU Outline of Submissions filed on 10 June 2014
Printed by authority of the Commonwealth Government Printer
Price code G, PR554387
1 MA000001.
2 I note that the relevant Commission member was on leave at this time.
3 [2014] FWCFB 2042.
4 [2014] FWC 3129.
5 I later note I decided to mark the two written submissions filed by the CFMEU.
6 [2010] FWAA 6985.
7 Exhibit Collinsville 12.
8 Exhibit Collinsville 10; Transcript of Proceedings PN301.
9 Exhibit Collinsville 4.
10 The last notice of an employee appointing himself as a bargaining representative was given to Collinsville on 18 February
2014.
11 Transcript of Proceedings PN276-277.
12 Exhibit Collinsville 10, paragraph 97.
13 [2014] FWCFB 2042.
14 No statutory exception was identified as being relevant to this matter.
15 Exhibit CFMEU 2, paragraph 10.
16 [2010] FWAFB 4602.
17 ibid, paragraph [43].
18 [2011] FWAFB 5163, paragraph [24].
19 Exhibit Collinsville 10.
20 Transcript of Proceedings PN530.
21 Exhibit Collinsville 13.
22 Exhibit Collinsville 14.
23 [2014] FWC 4276.
