Application by Lamont Plant Hire Pty Ltd - [2016] FWC 2033

1

Fair Work Act 2009 
s.185 - Application for approval of a multi-enterprise agreement

Lamont Plant Hire Pty Ltd
(AG2016/257)

Mining industry

DEPUTY PRESIDENT ASBURY BRISBANE, 7 APRIL 2016

Application for approval of the Lamont - Dugald River Enterprise Agreement 2016 - 2018.

1. BACKGROUND

[1] This Decision concerns an application by Lamont Plant Hire Pty Ltd (the Applicant)
for approval of the Lamont - Dugald River Enterprise Agreement 2016-2018 (the Agreement).  
The Form F16 – Application for approval of an enterprise agreement filed by the Applicant
states that there are no Union or employee bargaining representatives involved in the 
agreement making process. The Construction, Forestry, Mining and Energy Union (the 
CFMEU) sought to be heard in relation to the application.  Following a hearing on 15 March 
2015, I dismissed the application for approval of the Agreement and indicated that I would 
provide reasons for this in due course.  Those reasons are as follows.  

[2] On 23 February 2016, my Associate corresponded with the Applicant in relation to a
preliminary concern about whether a valid notice of employee representational rights had 
been issued.  The Applicant responded to that correspondence and provided an explanation in 
relation to those concerns. On 2 March 2016, My Associate again corresponded with the 
Applicant by email in relation to the following issues:

 Coverage of the Agreement;
 Ballot of employees for approval of the Agreement;
 Failure of the Applicant to file a signed copy of the Agreement;
 Dispute resolution clause; and
 Nominal expiry date.

[3] The Applicant provided a response to that email on 4 March 2016.  After considering 
that response I determined to list the application for Hearing.  A notice of listing was issued 
on 4 March 2016 for a hearing on 15 March 2016.  

[2016] FWC 2033

DECISION


E AUSTRALIA FairWork Commission




 



[2016] FWC 2033

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2. CFMEU REQUEST FOR DOCUMENTS

[4] At 8.05 am on 15 March 2016, Mr Ashley Borg, Senior Industrial Officer of the 
CFMEU, sent an email to my Associate requesting “documents filed by the Employer in 
relation to the proposed enterprise Agreement”.  This was the first contact from the CFMEU 
indicating an interest in the application. Given that the Commission publishes on its website 
copies of Agreements for which approval is sought, and that the Agreement was published in 
this way, it was assumed that the CFMEU request was for the provision to the CFMEU of the 
Form F16 and Form F17 filed by the Applicant (the application documents).  At 8.18 am on 
15 March 2016, My Associate responded to Mr Borg’s email stating that it is not my usual 
practice to release these documents to non-parties but that if the CFMEU asserts some basis 
for being given access to the application documents or otherwise being heard, the Union could 
attend the Hearing and any such submission would be considered at that time.  

[5] Mr Pederson, the representative of the Applicant, was copied into the response to the 
CFMEU’s request and to the email from the CFMEU making that request and responded 
objecting to the application documents being provided to the Union.  Mr Pederson’s objection 
– copied to the CFMEU – was made on the basis that the employees covered by the proposed 
Agreement had indicated a preference to represent themselves in the negotiations.  At 8.46 am 
on 15 March 2016, the CFMEU again corresponded with my Associate asserting that it had 
members covered by the proposed agreement and was a bargaining representative.  That 
correspondence further advised that the CFMEU wished to consider the application 
documentation and was not seeking to be heard “at this stage”.  The email went on to state 
that should the documentation not be provided the CFMEU would seek to be heard at the 
hearing scheduled for 10.00 am.  I did not accede to the CFMEU’s request for the documents.

[6] At 9.50 am on 15 March 2016, the CFMEU forwarded a Form F18 –Statutory 
declaration of employee organisation in relation to application for approval of an enterprise 
agreement – indicating that the CFMEU was a bargaining representative in relation to the 
Agreement and that it did not support the approval of the Agreement.  The Form F18 further 
indicated that the CFMEU sought to be bound by the Agreement in the event that it was 
approved.

[7] The CFMEU – represented by Mr Borg – attended the hearing on 15 March 2016 by 
telephone. I determined, over the objections of the Applicant, to hear from the CFMEU 
pursuant to s. 590 of the Act.  Mr Borg pressed the request that the CFMEU be provided with 
the application documents.  In pressing for the provision of the application documents Mr 
Borg asserted that the Union was seeking that it be provided with the Forms F16 and F17 and 
a signed copy of the Agreement and asserted that I would “fall into error” if I refused to 
provide the CFMEU with those documents.

[8] I informed Mr Borg that when the CFMEU requested the “application documents” it 
was taken to be requesting the Forms F16 and F17 filed with the Agreement given that the 
Agreement (without the signature page) is published on the Commission’s website and is 
publicly available.  I further informed Mr Borg that:

 If the CFMEU had requested that my Associate provide the Union with a copy of the 
Agreement itself, that request would have been granted but the signature page would 








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not be provided unless and until the Union established that it was a bargaining 
representative for the Agreement; 

 My Associate would immediately email a copy of the Agreement as published on the 
Commission’s website to the CFMEU;

 If the CFMEU wished to press its request for the Forms F16 and F17 and a signed 
copy of the Agreement I would require it to establish that the Union was a 
bargaining representative for the Agreement and would put in place appropriate 
mechanisms if the Union wished to keep the names of members confidential; and 

 If the CFMEU wished to establish that it is a bargaining representative for the 
Agreement it could request an adjournment of the hearing to enable it to provide 
evidence to the Commission to establish its status.

[9] As the hearing developed, it was not necessary for these matters to be dealt with or for 
these steps to be taken.

3. PROVISION OF APPLICATION DOCUMENTS 

[10] During the hearing Mr Borg made a number of assertions which called into question 
my approach to hearing from organisations of employees in applications for approval of 
agreements.  That approach and the basis for it is as follows.  

[11] In Construction, Forestry, Mining and Energy Union  v Collinsville Coal Operations 
Pty Ltd1 (Collinsville) a Full Bench of the Commission held that an organisation of employees 
that is not a bargaining representative for an enterprise agreement has no standing to be heard 
in that capacity in relation to its approval.  Where enterprise agreements may confer or deal 
with the rights of employee organisations, vis-à-vis the employees, an employee organisation 
that is not a bargaining representative may have a right to be heard in relation to the approval 
of the agreement.  The Full Bench went on to observe that the Commission has a broad power 
to inform itself in relation to any matter before it in such a manner as it considers appropriate, 
including by inviting – subject to any terms and conditions it determines – oral or written 
submissions.

[12] Consistent with the Full Bench Decision in Collinsville, when an organisation of 
employees requests to be provided copies of application documents for approval of 
agreements, including a signature page showing names and addresses of persons who have 
signed the Agreement, the organisation of employees would ordinarily need to assert some 
basis for being granted such access. The usual basis is that the organisation of employees is a 
bargaining representative of at least one employee who will be covered by the Agreement. In 
cases where the status of the employee organisation is not clear (eg the employee organisation 
is not named as a bargaining representative on the application documents) it is also usual for 
the Commission to seek comment from the applicant for approval of an agreement about 
whether the documents should be provided.

[13] Where there is a dispute about the status of an organisation of employees as a 
bargaining representative, the applicant for approval of an agreement and the employee 
organisation seeking to obtain copies of application documents, may each be given an 
opportunity to provide information to support their contentions.  If necessary such a dispute 
can be resolved by each party forwarding lists of employees/members, for the Commission to 
consider on the basis that the list provided by each party will be dealt with confidentially and 








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not shown to the other party. It may also be necessary that the Commission consider any 
instruments of appointment given to the employer by individual employees.

[14] When an application for approval of an enterprise agreement is made, a copy of the 
agreement is published on the Commission’s website.  Prior to approval by the Commission, 
signature pages for Agreements are not published as these are required to contain names and 
addresses of signatories for the employer and employees. There is no requirement for the 
Commission to publish application documents or copies of agreements containing signature 
pages. Such documents typically contain details of employees who have appointed themselves 
as bargaining representatives or who have signed agreements on behalf of other employees.  
In my view, it would be inappropriate in most instances to provide such documents to 
organisations or persons who are not bargaining representatives for the Agreement in 
question, or in circumstances where there is a dispute about whether the organisation seeking 
the documents is a bargaining representative.

[15] In circumstance where an organisation of employees is not a bargaining representative, 
it may be appropriate that the organisation be heard in relation to whether the agreement 
passes the Better Off Overall Test (BOOT) on the basis that the Commission can inform itself 
about matters before it as it sees fit, although it will always remain a matter of discretion for 
the Member determining the application.  Where the Commission allows such an organisation 
to be heard, it is a matter for the Member in the circumstances of the particular case, whether 
such a right is extended to allow the organisation to cross-examine witnesses or to lead 
evidence.

[16] In circumstances where an organisation of employees is not a bargaining 
representative, but asserts on arguable grounds that its interests will be affected by an 
agreement in the manner described by the Full Bench in Collinsville, it may be appropriate to 
provide application documentation to the organisation.  There may also be other grounds for 
providing such documentation and allowing the organisation to cross-examine witnesses or 
lead evidence, such as an assertion that there has been coercion or other inappropriate conduct 
in relation to the making of an agreement.  None of those circumstances arise in the present 
case.  

[17] In its initial request for “application documents” the CFMEU did not assert that it is, 
or was, a bargaining representative for the Agreement.   The applicant employer, when invited 
to comment on the request that the documents be provided, opposed the request and inferred 
that the employees had appointed themselves as bargaining representatives (although this was 
not clear on the face of the application documents).  Given that the CFMEU left its run until 
the morning of the Hearing, I determined to deal with the matter of the Union’s involvement 
at that Hearing.  I did so in light of the fact that the issues I had identified with the application 
for approval of the Agreement and the response of the Applicant to those issues indicated that 
the Agreement would probably not be capable of approval and it would be unnecessary for the 
Commission to hear from the CFMEU.

[18] The issues that lead to my refusal to approve the Agreement are set out below.  Those 
issues are related to the manner in which the Agreement was made. Although it is not 
necessary in the circumstances of this case, I also set out some issues with the terms of the 
Agreement relevant to whether it passes the BOOT, in the event that the employer seeks 
approval of an Agreement in its present for at some future time.








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4. ISSUES WITH THE AGREEMENT

4.1 Coverage 

[19] An enterprise agreement made under the Act may be a single or multi-enterprise 
agreement.  A single enterprise agreement may be made by one employer or a number of 
employers who are single interest employers, engaged in a joint venture, common enterprise 
or where the employers are related entities.  In the present case, although it is arguable that the 
employer parties are related entities, the Form F17 states that the Agreement is a multi-
enterprise agreement.

[20] An enterprise Agreement must include a term specifying its coverage by identifying 
matters such as:

 the employer;
 the group of employees to be covered (which must be fairly chosen);
 the work the employees will perform; and
 the location at which that work will be performed.

[21] Relevantly, clause 2 of the Agreement in the present case provides as follows:

“This Agreement is made between the parties:
 Lamont Plant Hire Pty Ltd (ABN 37156218594) of [address redacted]
 Businesses engaged by Lamont Plant Hire Pty Ltd to perform works or provide 

workers or services on the project (see Section 48)
 Employees of the above named entities whilst working on the project.

Note: Employees working on the project undertook a period of consultation and 
negotiation; and voted by majority to adopt this Enterprise Agreement.”

[22] Clause 48 of the Agreement, entitled “Declaration of Acceptance”, is signed on behalf 
of two employers – Lamont Plant Hire Pty Ltd and Lamont Labour Services Pty Ltd – who 
are referred to as Employer 1 and Employer 2. In correspondence sent to the Applicant by my 
Associate on 2 March 2016, a concern was expressed that the coverage of the Agreement is
uncertain.  In this regard there is a single employer named in clause 2 and the Agreement has 
been signed by two employers.  Further, the reference in clause 2 to “Businesses engaged by 
Lamont Plant Hire Pty Ltd to perform works or provide workers or services on the Project” 
evidences an intention that the Agreement will cover other entities which may be contracted 
to Lamont Plant Hire Pty Ltd or Lamont Labour Services Pty Ltd while the Agreement is in 
operation. If the Agreement is a multi-employer agreement, then each of the employers who 
will be covered by the Agreement must be identified clearly.  The Agreement is deficient in 
this respect.

[23] The coverage of a proposed agreement may alter during negotiations.  However, at 
very least, when employees who will be covered by the proposed agreement are given a copy 
the proposed agreement (or access to a copy) during the access period as required in s.180 of 
the Act, it is necessary that the coverage of the proposed agreement is clearly set out.








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[24] In the present case, it is obvious that the coverage of the Agreement was not clearly set 
out at the point a copy of it was provided to the employees or when they voted on it.  The 
coverage of the Agreement is uncertain.  The Applicant offered an undertaking to clarify the 
coverage of the Agreement.  However, for the reasons set out by a Full Bench of the 
Commission in Communications, Electrical, Electronic, Energy, Information, Postal, 
Plumbing and Allied Services Union of Australia v Main People2 (Main People), I am unable 
to accept such an undertaking on the basis that it would be likely to cause a significant change 
in the Agreement.  As the Full Bench in Main People observed:

“The scope of coverage of an enterprise agreement is one of its fundamental features. 
The coverage provision of an agreement serves to identify the class of persons who 
will be entitled to its benefits while it is in operation. The importance of an 
agreement’s coverage is signified by the fact that, under the FW Act, s.186(3) requires 
the group of employees covered by the agreement to be fairly chosen. For that reason 
an undertaking which purports to alter the coverage of an enterprise agreement by 
excluding classes of persons who, on the face of the agreement, would be covered by it, 
will always be likely to be a significant change.”3

[25] In the present case, an undertaking that limits the employers covered by the 
Agreement alters its coverage and is also a significant change to the Agreement. Employer 
parties cannot be added to a multi-enterprise agreement by way of an undertaking.

4.2 Ballot of employees

[26] The Form F16 states that the Agreement is a multi-enterprise Agreement.  The Form 
F17 Employer’s statutory declaration in support of an application for approval of the 
Agreement states in response to question 2.10, that two employees will be covered by the 
Agreement “at present” and two employees cast a valid vote to approve the Agreement.  
Although it is also stated that there will be more than 10 employees covered by the 
Agreement in the future, the Agreement was “made” with only two employees and only those 
employees voted to approve it.

[27] By virtue of s.172(1)(a) of the Act, two or more employers, that are not single interest 
employers, may make a multi-enterprise agreement with the employees who are employed at 
the time the agreement is “made” and who will be covered by the Agreement. An Agreement 
is “made” when it is approved by a majority of employees in the manner set out in s.182 of 
the Act. If the Agreement relates to a genuine new enterprise that the employers are 
establishing or propose to establish and the employers have not employed any of the persons 
who are necessary for the normal conduct of the enterprise and who will be covered by the 
Agreement, the employers may make the Agreement with one or more relevant employee 
organisations (a greenfields agreement).

[28] Section 172(6) provides that an enterprise agreement cannot be “made” with a single 
employee.  If the Agreement was a single enterprise agreement the fact it was made with two 
employees would not be an issue.  However, because the Agreement is a multi-enterprise 
Agreement, there is a significant problem with the fact that it is made with two employees.  
Leaving aside the issue of the uncertainty about employers who are proposed to be covered by 
the Agreement, if there were two employees when the Agreement was made, then as a matter 
of mathematics one of the following scenarios applied:








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 one of the employers employed both employees and the other had no employees; or
 each employer employed one employee.  

[29] In the first of these scenarios the employer who employed no employees could not 
make a multi-enterprise agreement. It is also the case that if one of the employers had no 
employees and purported to make a multi-enterprise agreement, the Agreement could not be 
varied to remove that employer in the manner provided for in s.184 of the Act.  That section 
applies in circumstances where a multi-enterprise agreement is made and is not approved by 
the employees of all the employers who make it.  In the circumstances of the present case, if 
one of the employers could not have made the Agreement, s.184 has no application.  In the 
second scenario the Agreement could not have been made at all because at the point it was 
made, each of the employers who purported to make the Agreement employed only one 
person.  

4.3 Application documents

[30] Rule 24 of the Fair Work Commission Rules 2013 requires that each employer to be 
covered by the Agreement must lodge a statutory declaration in support of the application for 
approval by an officer or authorised employee within 14 days after the Agreement is made.  
Further, by virtue of s.185(2)(a) of the Act, an application for approval of an enterprise 
agreement must be accompanied by a signed copy of the Agreement.  Regulation 2.06A of the 
Fair Work Regulations 2009 provides that for the purposes of s.185(2)(a) of the Act, a copy 
of an enterprise agreement is a signed copy only if it is signed by the employer covered by the 
Agreement and at least one representative of employees and includes the full name and 
address of each person who signs the agreement and an explanation of their authority to sign 
the agreement.

[31] In the present case, only one of the employer parties to the Agreement – Lamont Plant 
Hire Pty Ltd – has lodged a statutory declaration as required.  Further, the application for 
approval was not accompanied by a signed copy of the Agreement.  While these issues could 
be rectified by the filing of the material as required and the Applicant seeking an extension of 
time in which to file the material, in circumstances where the Agreement is not otherwise 
capable of approval it is not necessary to deal further with this matters. 

4.4 Dispute Resolution Procedure

[32] Section 186(6)(b) of the Act requires that the Agreement include a term about settling 
disputes arising under the Agreement and in relation to the National Employment Standards 
and that the term allows for the representation of employees covered by the Agreement for the 
purposes of the procedure. Clause 38 of the Agreement, which is entitled “Complaints and 
Dispute Resolution”, does not meet these requirements.  

[33] In circumstances where the Agreement was capable of approval, the deficiencies with 
the procedure could be resolved by the employer providing an undertaking to the effect that 
the “Complaints and Dispute Resolution” procedure in clause 38 of the Agreement is the 
process by which disputes arising under the Agreement or in relation to the National 
Employment Standards will be settled dealt with. 








[2016] FWC 2033

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5. BOOT AND OTHER ISSUES

[34] In addition to the matters set out above, I have some concerns about whether the 
Agreement passes the BOOT and some other issues. These are summarised below in the event 
that the Applicant employer rectifies the procedural matters I have identified and again seeks 
approval of the Agreement in its current form.  The relevant modern Award for the purposes 
of the BOOT is the Mining Industry Award 2010 (the Award).  

[35] Clause 3.0 of the Agreement provides that flexibility in a position, duties and 
remuneration may be agreed between the employer and the employee and expressed in a Job 
Role Description and Offer of Employment.  It appears that this provision allows for a 
variation to the remuneration under the Agreement without using the Flexibility provision, 
required to be in the Agreement by s. 202 of the Act, and the guarantee that an employee who 
makes such an agreement will be better off overall.

[36] Clause 7 of the Agreement states that sub-contractors are not employees and are not 
bound by the Agreement and then goes on to define “independent contractors” and “sub-
contractors” and stipulate that the Agreement forms part of their terms and conditions and to 
require their compliance with it.  Such a term is not a permitted matter because it does not 
pertain to the relationship between the employer and employees. There are other references to 
contractors and sub-contractors through the Agreement.

[37] Clause 17 of the Agreement allows the employer to suspend employees without pay 
for disciplinary reasons.  This is a matter that is not provided for in the Mining Industry 
Award 2010 and is arguably a detriment to employees that must be considered in an analysis 
of whether the Agreement passes the BOOT.

[38] Clause 18 of the Agreement deals with “Wages and Salaries” and is in the following 
terms:

“Employee shall be paid for the hours worked in each preceding pay period, as 
identified on the employee timesheet; and calculated at the rate as agreed in the Offer 
of Employment; as:

Hourly Rate:
The rate agreed between Employer and Employee for each ordinary hours worked; 
based on the relevant modern award and the worker level / grade; and shall be used to 
calculate wages, overtime and allowances (as applicable).
 Casual loading on hourly rate is plus 25%

Base Rate:
The rate agreed between Employer and Employee to provide flexibility; and includes 
provisions that offset all or any of – rostered overtime, public holidays and annual 
leave loading, shift loading and casual loading as applicable.
 Base rate is calculated to be equal to or greater than the applicable rates in the 

appropriate award as shown in the Better-Off-Overall Test calculator (annexure C).

Salary:








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The agreed annual payment divided by the pay period frequency; and includes 
provisions that offset all or any of – rostered overtime, public holiday, annual leave 
loading, shift loading et al.
 Salary is calculated to be greater than the applicable rates in any appropriate 

award as shown in the Better-Off-Overall Test calculator (annexure C).
 Employees agree that it is their responsibility to maintain the level of performance 

and attendance required to retain their salary status and that this may be forfeited if 
they fail to do so.”

[39] Clause 18 also provides for overtime as follows:

“Overtime:
Overtime is an (award-based) entitlement for work performed outside the ordinary 
hours; and is reflected in salary and base rates; and is paid (as applicable) for hourly 
rate workers at the rate nominated by NES and Fair Work Act 2009 and revisions.
 Overtime rates are cal paid as per relevant award”

[40] Clause 17 of the Award provides for annualised salaries in satisfaction of a number of 
Award provisions: classifications and minimum wage rates; allowances, overtime and penalty 
rates; and annual leave payments.  The annual salary must be no less than the amount the 
employee would have received under the Award for work performed over the year for which 
the salary is paid (or over a lesser period if employment ceases earlier) and that it must be 
reviewed annually by the employer to ensure it is appropriate having regard to the Award 
provisions which are satisfied by the payment of the annual salary.  Clause 17 of the Award 
also provides that for the purpose of the NES the base rate of pay of an employee receiving an 
annual salary under the clause is the relevant minimum rate of pay under the Award for the 
employee’s classification and excludes any incentive-based payments, bonuses, loadings, 
monetary allowances, overtime and penalties.

[41] The terms of clause 18 of the Agreement are unclear.  For example, is it intended that 
there are three ways in which employees can be paid: hourly rate, base rate or annual salary?  
If this is the case, then the Schedule of pay rates at clause 47 of the Agreement contains one 
set of rates for all of the classifications.  The preamble to the clause states:

“This schedule lists the pay rates applicable to employees at various positions within 
the business and the increases provided in the Enterprise Agreement.”

[42] The distinction between hourly rate employees, base rate employees and those who are 
paid an annual salary is unclear. The rates set out in clause 47 of the Agreement appear to 
exceed those for the equivalent classifications under the Award. However, it is not clear 
whether these are hourly rates or base rates as defined in the Agreement. If the rates set out in 
clause 47 are base rates, then overtime, public holidays, annual leave loading, shift loading 
and casual loading are included in them, and those rates may not be sufficient to offset the 
removal of such payments, when compared to the entitlements of the Award.

[43] Ordinary hours in the Award are defined as follows:

 An average of 38 ordinary hours per week;
 A maximum of ten ordinary hours per day or twelve hours by agreement with the 

majority of affected employees.








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[44] The Award also provides that ordinary hours may be worked in accordance with a 
work cycle and that weekly hours may be averaged over a period of 26 weeks.  There are no 
equivalent provisions in the Agreement and there is no limit on the period over which 
ordinary hours can be averaged. 

[45] The Award defines overtime as work done in addition to an employee’s ordinary 
hours.  The definition of overtime in the Agreement is not consistent with that in the Award.  
The lack of clarity around the rates in the Agreement and whether they are base rates which 
include compensation for overtime or hourly rates which do not include compensation for 
overtime, combined with the issues in relation to the definition of ordinary hours and 
overtime, results in a situation where I am unable to be satisfied that the Agreement would 
pass the BOOT. 

[46] Clause 21 of the Agreement provides for amounts of annual leave that are accrued on 
a weekly, fortnightly, ½ monthly, monthly and annual basis.  The minimum work period for 
which leave will be accrued under the Agreement is one week.  This is inconsistent with the 
National Employment Standards which simply provide that leave accrues progressively 
during a year of service.

[47] There are a number of provisions in the Agreement under which payments to 
employees can be withheld or deductions can be made from their wages.  Those provisions 
appear to be inconsistent with the requirements of the Act in respect of deduction from wages 
as specified in Division 2, of Part 2-9 of the Act.  These matters would be required to be 
addressed before the Agreement could be approved in the event that a further application for 
approval is made.

6. CONCLUSION 

[48] For these reasons I refused to approve the Agreement and on 16 March 2016 issued an 
Order dismissing the application for approval.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Price code C, PR578575

                                               
1 [2014] FWCFB 7940.
2 [2015] FWCFB 4467.
3 Ibid at [35].


ORK COMMISSION AUSTRALIA THE SEAS OF FAIR

Cases cited by this decision: