1
Fair Work
Act 2009
s.185—Enterprise agreement
Ditchfield Mining Services Pty Limited
(AG2018/1902)
DITCHFIELD MINING SERVICES PTY LTD - COAL MINING
ENTERPRISE AGREEMENT 2018
Coal industry
DEPUTY PRESIDENT BULL SYDNEY, 5 FEBRUARY 2019
Ditchfield Mining Services Pty Ltd - Coal Mining Enterprise Agreement 2018; Application for
approval of the Ditchfield Mining Services Pty Ltd - Coal Mining Operations Enterprise
Agreement 2018.
[1] An application (Form F16) has been filed by Ditchfield Mining Services Pty Limited
(the applicant) for the approval of an enterprise agreement known as the Ditchfield Mining
Services Pty Ltd - Coal Mining Enterprise Agreement 20181 (the Agreement). The application
was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-
enterprise agreement as per s.172(2) of the Act.
[2] The application was accompanied by a statutory declaration (Form F17) of Mr Warren
Ditchfield, Managing Director, made on behalf of the applicant. The declaration stated that
the Agreement was made on 26 April 2018.
[3] The application states that there were four employee bargaining representatives for the
Agreement.
[4] The Agreement applies to employees that would otherwise be covered by the Black
Coal Mining Award 2010 (the Award) whose classifications are set out in the Agreement at
clause 2.1 Rates of Pay. The classifications are:
Entry Level –less than 12 months service
Level 1
Leading Hand
Plant Mechanic
1 The front page of the Agreement uses the word ‘Limited’ whereas ‘Ltd’ is used in the Title clause 1.1, the legal name of the
applicant is also expressed as ‘Limited’
[2019] FWCA 661 [Note: This decision and the associated agreement has
been quashed - refer to Full Bench decision dated 14 June 2019 [2019]
FWCFB 4022]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb4022.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb4022.htm
https://www.fwc.gov.au/documents/documents/agreements/fwa/AE501615.pdf
[2019] FWCA 661
2
[5] As per the requirement under s.186(3) of the Act, I am satisfied that the group of
employees covered by the Agreement was fairly chosen taking into account the operational,
organisational and geographical distinction of the employees covered under the Agreement.2
[6] At the time of voting for the Agreement there were 4 employees covered by the
Agreement. Of those employees, all 4 employees cast a valid vote to approve the Agreement
and all 4 were named in the application (F16) as Employee Bargaining Representatives.
NERR
[7] Pursuant to s.173 of the Act, the employer of a proposed enterprise agreement must
take all reasonable steps to give notice of the right be represented by a bargaining
representative to each employee who will be covered by the agreement where the employee
agrees to bargain or initiates bargaining (the notification time). The notification must be in the
form of a notice of employee representational rights (NERR) and is required to be provided to
employees as soon as practical but no later than 14 days after the notification time.
[8] Mr Ditchfield’s statutory declaration indicated a period greater than 14 days had
elapsed between the notification time and the time the NERR was provided to employees. In
response to the Commission raising this issue the applicant confirmed that the NERR had in
fact been provided to employees within the 14 day statutory timeframe. A defective NERR
was originally issued to employees on 19 March 2018; upon discovery of the error,
negotiations ceased and a new compliant NERR was issued on 3 April 2018. The
Commission is thus satisfied that the applicant has complied with s.173(3) of the Act.
CFMMEU’s application to be heard
[9] On 11 May 2018, the Construction, Forestry, Mining, and Energy Union Mining and
Energy Division (CFMMEU)3 emailed the Commission stating they had concerns about the
content of the Agreement and wished to be heard on the matter and requested copies of the
F16 and F17 forms that were lodged.4 The CFMMEU was not a bargaining representative for
any employee covered by the Agreement.
[10] On 16 May 2018, the Commission provided the CFMMEU with redacted copies of the
F16 and F17 which include the removal of personal details of the employee bargaining
representatives, the voting details and the demographics of the employees covered by the
Agreement. The CFMMEU was also provided with a copy of the NERR.
[11] On 22 May 2018, the CFMMEU requested the Commission provide an un-redacted
copy of the F17, relying on the Full Bench decision in CFMEU v Ron Southon Pty Ltd5.
[12] On 23 May 2018, the CFMMEU provided the Commission with written submissions
on why it should be heard in regard to the application.
2 S.186(3) and s.186(3A) of the Act
3 Now known as the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU)
4 The email purports to be from the CFMEU however on 27 March 2018 the CFMEU became the CFMMEU
5 [2016] FWCFB 8413
[2019] FWCA 661
3
[13] On 23 May 2018, the applicant advised the Commission that it objected to the
CFMMEU being provided an un-redacted copy of the F17 and the CFMMEU’s request to be
heard on the approval application. No reasons were provided by the applicant in support of
their objections.
[14] It does not appear that the Commission at the time acceded to the CFMMEU’s request
for an un-redacted copy of the F17. The matter was allocated to my chambers on 22 October
2018.
[15] The Full Bench decision in CFMEU v Ron Southon Pty Ltd is, as stated at paragraph
[28] of that decision, authority for the concept that the F17 application form should be treated
as a document that is freely available to any member of the public, unless there are
exceptional circumstances that would justify an order of confidentiality. The F17 was initially
provided to the CFMMEU with the redactions as stated above. It is my view, however, that
there are no obvious privacy reasons and none have been provided by the applicant that
warrants information on the voting process or the demographics of the employees covered by
the Agreement remaining confidential. An un-redacted F17 has thus been provided to the
CFMMEU.
[16] As the CFMMEU was not a bargaining representative for the Agreement it does not
have a statutory right to appear and/or be heard as a party to the application. The CFMMEU
acknowledges that it does not have any members employed by the applicant. The CFMMEU
however sought to be heard under the discretion provided to the Commission by s.590 of the
Act, which at s.590(1), allows the Commission to inform itself in relation to any matter before
it in such a manner as it considers appropriate.
[17] The Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville
Coal Operations Pty Limited6 at [75] stated the following in respect of s.590 of the Act and
the Commission’s agreement approval process:
“[75] We would make the observation however, that the Commission may choose, in a
particular case, to hear from an employee organisation or any other person about the
approval of an agreement even though the organisation or person may not otherwise
have a right to be heard. The Commission has a broad power to inform itself in relation
to any matter in such manner as it considers appropriate, including by inviting oral or
written submissions from a person of organisation. (sic) (Section 590)”
[18] The CFMMEU’s written submissions of 23 May 2018 refer to its significant
membership amongst labour hire and production and engineering employees employed in coal
mines throughout Australia and its extensive history in the coal mining industry.
[19] The CFMMEU also points to its involvement in the making of the Award and the
Commission 4 yearly review of the Award. It is submitted by the CFMMEU that it can assist
the Commission in its determination on whether to approve the Agreement, particularly in this
case where there is no contradicter.
[20] Whilst opposing the CFMMEU’s involvement, the applicant did not respond to the
CFMMEU’s written submissions on this point.
6 [2014] FWCFB 7940
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb7940.htm
[2019] FWCA 661
4
[21] Pursuant to s.590(1) of the Act the Commission accepts that the CFMMEU is able to
assist the Commission in its approval deliberations and as such, the CFMMEU’s written
submissions elaborated on below have been considered and taken into account in arriving at
this decision.
[22] On 28 August 2018, the Commission emailed the applicant requesting a response to a
number of issues it had identified. A response was provided on 30 August 2018, which
attached a replacement signature page and four undertakings to resolve the issues raised by
the Commission.
Relevant Statutory Provisions
[23] In Newlands Coal Pty Ltd v CFMEU7 the Full Bench summarised the Commission’s
role in determining whether or not an enterprise agreement should be approved as follows:
“[33] FWA does not have a general discretion under the Act to determine whether an
enterprise agreement should be approved. Rather, s.186 imposes an obligation on the
tribunal to approve an agreement if a valid application for approval of the agreement is
made under s.185 and the requirements of ss.186 and 187 are met.
[34] Broadly, the directions of s.187 involve examining the steps followed in the
making of the agreement and the lodging of the application. Section 186 broadly
involves the content of the agreement. Essentially, the role is one of examining
whether the procedures followed leading up to the agreement being made were in
accordance with what the Act requires and whether the content of the agreement
satisfies certain conditions that the Act imposes.
[35] There is also a requirement for FWA to consider whether the agreement contains
unlawful matters. What is an unlawful matter is defined by s.194. Additionally, and
despite the requirements of s.186, Fair Work Australia may refuse to approve an
agreement if a term of the agreement would mean compliance with that term would
involve a breach of a Commonwealth law (s.192). There is no general role for the
Tribunal to examine the validity of provisions in the agreement.
[36] The tribunal has no general nor specific power to rectify matters in the agreement
if the terms of the agreement do not meet the requirements of the Act. The tribunal can
accept undertakings but those undertakings can only be accepted if they are regarding
concerns over the meeting of the requirements of s.186 and s.187.
[37] In summary, the role of FWA is to decide on whether the prescribed rules for
conduct and procedures have been followed in the making of the agreement and if an
agreement is made did the parties agree to things which an agreement can be about
and are the terms agreed sufficient to satisfy the tests set out in the Act.”
(Endnotes omitted)
Legislative requirement
7 [2010] FWAFB 7401
http://www.fwc.gov.au/decisionssigned/html/2010fwafb7401.htm
[2019] FWCA 661
5
[24] Section 188 of the Act expands upon the meaning of “genuinely agreed” in s.186(2)(a)
and provides:
“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.”
[25] Section 186 of the Act sets out a number of general requirements for approval of an
enterprise agreement. Sub s.186(2)(a) includes a requirement that the Commission must be
satisfied that the agreement has been genuinely agreed to by the employees covered by the
agreement, being those persons currently employed who fall within the whole class of
employees to whom the agreement might in future apply. A failure to comply with this pre-
approval requirement will preclude the proposed Agreement from being an agreement capable
of being approved by the Commission.8
“Section 186 When the FWC must approve an enterprise agreement—general
requirements
Basic rule
186(1) If an application for the approval of an enterprise agreement is made under
section 185, the FWC must approve the agreement under this section if the
requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings
(see section 190).
Requirements relating to the safety net etc.
186(2) The FWC must be satisfied that:
8 Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 Flick J at [91]
[2019] FWCA 661
6
(a) if the agreement is not a greenfields agreement—the agreement has been
genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered
by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to
make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with
the interaction between the National Employment Standards and enterprise
agreements etc.); and
(d) the agreement passes the better off overall test.”
(My underline)
[26] The Commission must approve an agreement if it is satisfied that each of the
requirements set out in ss. 186 and 187 of the Act are met. If the Commission has a concern
that the agreement does not meet those requirements, it may exercise its discretion to approve
the agreement if it is satisfied that an undertaking it accepts pursuant to s.190 of the Act meets
the particular concern.
[27] Section 188(a)(i) of the Act provides that for an enterprise agreement to have been
genuinely agreed to by the employees (as required by sub-s.186(2)(a)) the Commission is to
be satisfied (among other things) that sub-s.180(2), (3), and (5) of the Act have been complied
with.
[28] Section 180(5) of the Act requires that the employer must ‘take all reasonable steps’ to
ensure that the terms of the agreement and the effect of those terms are explained to the
relevant employees.9 Sub s.180(5) is expressed in the following terms:
[29] Section 180(5) of the Act requires that:
“(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are
explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into
account the particular circumstances and needs of the relevant
employees.
[30] Sub s.180(6) is to be read in conjunction with sub s.180(5) and states:
“(6) Without limiting paragraph (5)(b), the following are examples of the kinds
of employees whose circumstances and needs are to be taken into account for
the purposes of complying with that paragraph:
9 S.186(2)(a) requires ‘genuine agreement’ which is defined in s.188(a)(1) and requires compliance with s.180(5) which
requires an employer to take all reasonable steps to explain the terms of the Agreement and their effect
[2019] FWCA 661
7
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the
agreement.”
[31] In The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd 10 the
Full Bench discussed the construction of the expression ‘all reasonable steps’ in the following
manner:
“[33] The expression “all reasonable steps”, and the case authorities concerning that and
similar expressions were discussed at length in the decision of the Industrial Relations
Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers’
Union, New South Wales.11 The following propositions may be derived from the
Court’s analysis:
reasonable steps are what a reasonable man or woman would regard as being
reasonable steps in the circumstances which apply;
the obligation to take “reasonable steps” depends on the particular circumstances
existing at the time the obligation arises; and
a requirement to take all reasonable steps does not extend to all steps that are
reasonably open in some narrow or theoretical sense (such as, for example, matters
not directly within the particular knowledge or experience of a relevant party).
[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd12 the Tasmanian
Supreme Court said, in relation to a requirement for a party to use its best endeavours
to achieve a particular object, that a failure to take a particular step had to be assessed
by reference to its materiality to the failure to achieve the relevant object. The Court
said:
‘In any event quite apart from authority it would seem to me to be an untenable
proposition that a party could be held to have failed to satisfy a condition
requiring it to use its best endeavours in relation to an application because it
failed to take some particular step if in fact the application would have been
unsuccessful even had that step been taken.’
[35] That proposition appears to us to be equally applicable to consideration of
whether an obligation to take all reasonable steps has been complied with.”
[32] In the Federal Court decision Construction, Forestry, Mining and Energy Union v One
Key Workforce Pty Ltd13 Flick J stated that the nature of the task of the Commission under s.
10 [2016] FWCFB 1926
11 [2004] NSWIRC 222; 137 IR 176 at [67]-[71]
12 [1995] TASSC 91; (1995) 5 TASR 121 at 133
13 [2017] FCA 1266, 270 IR 410
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb1926.htm
[2019] FWCA 661
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180(5) of the Act, and other terms requiring its satisfaction or otherwise about a state of
affairs, is to make a broadly-based value judgment.14
[33] Flick J said that in respect of the requirements established by s.180(5) of the Act:
“[103] …The requirement imposed by s.180(5) to ‘take all reasonable steps to ensure
that…the terms of the agreement and the effect of those terms, are explained’ is an
important obligation imposed upon an employer to ensure that employees are as fully
informed as practicable. The requirement is not a mere formality. Whatever steps may
be necessary will depend upon the facts and circumstances of each particular case: but
those steps are not satisfied by a person reading – without explanation – the terms of
an agreement to an employee.”15
[34] On appeal, the Full Court16 stated that the matters in s.180(5) of the Act were matters
to which the employer was required to attend but were not jurisdictional facts for the purpose
of the exercise of the Commission’s approval powers.17 The Full Court went on to hold that a
condition precedent to the exercise by the Commission of its jurisdiction under s.186 of the
Act to approve an enterprise agreement was its satisfaction that the employer had complied,
among other things with s.180(5) of the Act. The Full Court held that satisfaction as to
whether s.180(5) had been complied with involved an evaluative judgment as to whether
“reasonable steps” were taken by the employer, stating in respect to the particular agreement
approval application:
“112 It is common ground that the Commission was never told what was said to the
relevant employees. It was simply told that they had been given an explanation of the
terms of the Agreement and the effect of those terms. In effect, this amounted to little
more than a self-serving statement that the employer had complied with its obligation
under the Act. OKW contended that the fact that it made such a statement in a statutory
declaration was significant. It is not. As the CFMEU argued, whether all reasonable
steps were taken to ensure that the effect of the terms of the Agreement was explained
in an appropriate manner is a question of substance, not form. The recital of a
conclusion on the very question the Commission was required (through an evaluative
process) to determine is not, without more, a sufficient basis for the satisfaction of the
statutory test. In other words, a bare statement by an employer that an explanation has
been given is an inadequate foundation upon which to reach a state of satisfaction.
OKW submitted that if the Commission had erred in this respect, it was an error in fact
finding or an error in process, which would be an error within its jurisdiction. We
reject this submission. In order to reach the requisite state of satisfaction that s 180(5)
had been complied with, the Commission was required to consider the content of the
explanation and the terms in which it was conveyed, having regard to all the
circumstances and needs of the employees and the nature of the changes made by the
Agreement. It is true that the Act does not expressly say that. But the question of
whether an administrative decision-maker is required to consider a matter is not
determined only by the express words of the Act; it may also be determined by
14 Ibid at [43] – [44] citing the judgement of Buchanan J in Construction, Forestry, Mining and Energy Union v John
Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297, 247 IR 55
15 [2017] FCA 1266, 270 IR 410 at [103]
16 One Key Workforce Pty Ltd v Construction Forestry Mining and Energy Union [2018] FCAFC 77, 277 IR 2
17 Ibid at (103)
[2019] FWCA 661
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implication from the subject-matter, scope and purpose of the Act: Minister for
Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).
113 A consideration of the subject-matter, scope and purpose of the relevant
provisions of the Fair Work Act indicates that the content of the explanation and the
terms in which it was conveyed were relevant considerations to which the Commission
was bound to have regard. The absence of that information meant that the Commission
was not in a position to form the requisite state of satisfaction. Put differently, without
knowing the content of the explanation, it was not open to the Commission to be
satisfied that all reasonable steps had been taken to ensure that the terms and their
effect had been explained to the employees who voted on the Agreement or that they
had genuinely agreed to the Agreement.
114 The following considerations point inexorably to that conclusion.
115 The Commission was required to be satisfied that OKW had taken “all reasonable
steps to ensure” that both the terms and the effect of the terms had been explained to
the relevant employees as an element in the inquiry as to whether “genuine”
agreement had been obtained from them. The agreed purpose of the obligation
imposed on employers by s 180(5) is to enable the relevant employees to cast an
informed vote: to know what it is they are being asked to agree to and to enable them
to understand how wages and working conditions might be affected by voting in
favour of the agreement.
116 In order for the employer to comply with the obligation it must take into account
the particular circumstances and needs of those employees, including their cultural and
linguistic backgrounds, their youth, and the absence of a bargaining representative.
That is made explicit in s 180(6). How could the Commission decide whether the steps
the employer had taken were “all reasonable steps” unless it knew what the employees
had been told before they cast their votes? Without knowing the terms in which the
explanation had been conveyed how could the Commission form an opinion on the
sufficiency of the explanation, particularly having regard to the considerations
mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine
agreement had been reached without having evidence upon which it could answer both
these questions?”
CFMMEU submissions
[35] On 29 August 2018, the CFMMEU forwarded an email to the Commission raising
what it said were substantial issues with the Agreement.
[36] In summary the CFMMEU submitted:
1. The Applicant has not complied with the provisions of s180(2) of the Act and the
Commission cannot be satisfied the Agreement was genuinely agreed (s 186(2)(a)
and s.188(a)(i). In particular:
Clause 4.1(g)(ii) and 5.1 of the Agreement and the requirement that
employees comply with or support various policies means that s180(2)
has not been complied with.
[2019] FWCA 661
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2. The Applicant has not complied with the provisions of s180(5) of the Act and the
Commission cannot be satisfied the Agreement was genuinely agreed. In this regard it
is submitted:
The Applicant has not complied with its obligation to take reasonable
steps to explain the terms of the Agreement and the effect of those
terms. Dependent upon access to the un-redacted information in the
F17, issues concerning taking into account the particular circumstances
and needs of the relevant employees may also arise.
In regard to s.180(5) the CFMMEU referred to recent Federal Court
decisions to be considered against what is stated in paragraphs 2.4, 2.6
and 2.7 of the F17.
Contrary to the Applicant’s statement at paragraph 3.5 of its F17, there
are less beneficial terms in the Agreement which raises a s.180(5)
consideration.
3. The FWC cannot be satisfied that the Agreement passes the BOOT.
On reading clauses 2.1(a), (b) and (c), the rates expressed are, with the
exceptions in clause 2.1(c), loaded rates. As understood, the reference
to “payment for rosters” in clause 3.1(d) only applies to a determination
of the “rostered earnings” for certain provisions of the Agreement.
An Entry Level employee18 on an even time roster (12 hour shifts, day
and night shift [0600 – 1800, 1800 – 0600] over 4 weeks) would be
worse off under the Agreement than the Award.
A Level 2 employee would be marginally better off, but if public
holidays are taken into account the employee is worse off (it is noted
that the Agreement is confusing on the entitlement to public holidays).
These calculations are based on the Level 3 Miner in the Black Coal
Mining Industry Award as a comparator ($24.53 per hour). In that
regard, it is noted from material supplied by the Applicant that Level 1
in the Agreement also compares with the Mineworker Advanced and
Mineworker Specialised in the Award. Using those comparators, Level
1 in the Agreement is less beneficial to an employee than the Award as
regards the even time roster. It is further noted that in information
supplied by the Applicant as attached to its F17 Declaration, it refers to
incorrect rates for the Award classifications e.g. the correct hourly rate
for a Level 3 Miner in the Award for comparison purposes is $24.53
(from the 2016-2017 Annual Wage Review), not $23.75 as in the table
(from the 2015-2016 AWR).
The Agreement provides a loaded rate for casual employees which
raises the BOOT issue set out in the recent loaded rates decision where
18 See email from CFMMEU of 5 September correcting original wording
[2019] FWCA 661
11
it was held that it would be difficult to provide a loaded rate for casuals
that would satisfy the BOOT.
Without being exhaustive, the following less beneficial provisions are
contained in the Agreement compared to the Award.
o Reduced overtime rates, entitlements on termination of
employment, crib breaks, starting/finishing times, stand
downs, starting/finishing place.
o No entitlement to meal breaks or meal allowance during
unrostered overtime, call back, minimum rest period
between shifts, minimum pay for Saturday and Sunday
overtime, acting in higher position, provisions for
excessive annual leave, RDO provisions, entitlement to
various allowances.
o Inclusion of an abandonment of employment provision
and casual employment
Whilst it is recognised that there are certain beneficial provisions such as
certain payments at “rostered earnings”, no cap on redundancy, slightly higher
first aid allowance, the Commission cannot be satisfied the BOOT has been
met.
[37] In response to a Commission request of 11 September 2018, the CFMMEU provided
further written submissions on 17 September 2018, expanding upon the points raised above.
On 13 December 2018, the CFMMEU forwarded corrections to their submissions in respect
to the wage calculations.
Incorporation of material
[38] It is contended by the CFMMEU that clause 4.1(g)(ii) of the Agreement incorporates
material by reference. The clause states that it is a condition of employment that each
employee complies with all safety policies, procedures and requirements. The F17 did not
demonstrate any steps taken by the employer to ensure that employees had copies or access to
this material.
[39] In advice forwarded to the Commission on 3 October 2018, the applicant advised that
all applicable safety policies and procedures in existence at the time were made available to
the relevant employees throughout the access period. Copies of all applicable safety policies
and procedures were kept at and displayed on the wall of each Ditchfield office and at each
work site office and crib hut.
[40] On the basis of the applicant’s response, I am satisfied that each employee had access
to the relevant safety policies and procedures and that the requirements of s.180(2) of the Act
were met in that all reasonable steps were taken during the access period for employees to
have access to the documents referred to in clause 4.1(g)(ii) of the Agreement.
Requirement to explain the Agreement and the effect of its terms
[2019] FWCA 661
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[41] The CFMMEU submit that the Commission cannot be satisfied that the Applicant has
complied with the requirements of s.180(5) of the Act based on what has been supplied to the
Commission by way of the F17. It is contended that presenting employees with a marked up
copy of the Agreement did not constitute an explanation in light of the decision in CFMEU v
One Key Workforce Pty Ltd.19
[42] The CFMMEU’s submission states that inviting and providing time for employees to
raise any concerns is still a failure to provide an explanation of the Agreement and the effect
of its terms. The fact that the applicant stated there were no less beneficial terms in
comparison to the Award when there were, indicate that these matters were not raised with
employees.
[43] I accept that, on the face of the responses provided in the F17, the CFMMEU
submissions raise legitimate concerns.
[44] Mr Ditchfield’s F17 Statutory Declaration provided some detail as to the process
undertaken to explain the Agreement and the effect of its terms stating that:
on 19 March 2018, the applicant agreed to bargain (the notification time).20
on 3 April 2018, the NERR notices were provided to all employees by hand following
which they returned a signed instrument of appointment and 4 bargaining
representatives were appointed.21 On the same day, all employees were issued with a
copy of the draft agreement. Additional copies were available in the site office. A
copy was also made available in the Tuncurry office of the applicant’s parent company
where employees worked on occasion leading up to the vote.22
on 17 April 2018, employees were hand-delivered a written notice advising that a
secret ballot would take place at the work site on 26 April 2018. On 26 April 2018, the
vote took place.23
[45] Mr Ditchfield, in his Statutory Declaration, states that the Agreement was similar to an
enterprise agreement that previously applied to former mining operations undertaken by the
parent company of the applicant which was known to all employees as they had worked under
the parent company agreement.24
[46] All amendments to the previous agreement were ‘clearly highlighted’ to make it easy
for the employees to identify any changes. Employees were invited to discuss any concerns
with management.25
19 [2017] FCA 1266
20 At 2.8
21 At 2.3
22 At 2.4
23 At 2.5
24 At 2.6
25 F17 at 2.6
[2019] FWCA 661
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[47] In the applicant’s further written response of 3 October 2018 the applicant
acknowledged that its F17 explanation was not a comprehensive response and provided
further elaboration on how its explanation of the Agreement, and the effect of its terms to
employees, was provided.
a meeting was held on site on 17 April 2018, involving three members of
management and all of the relevant employees during which the attendees went
through the Agreement in detail, from front to back, discussing each of the terms of
the Agreement;
during that meeting, employees asked a range of questions about the Agreement,
which were answered by management;
a further meeting was held on 24 April 2018, with the same attendees, during which
the Agreement was again discussed at length; and
throughout the bargaining/negotiation period and the access period, the Mine
Manager was based full time on site and was available to discuss the Agreement
with the relevant employees.
[48] The explanation was appropriate taking into account the particular circumstances and
needs of the employees. There is nothing in the demographic group in answer to question 4.3
of the F17 which would require special consideration to be given to any employee.
[49] Each employee had nominated themselves as a bargaining representative; no employee
had been employed for less than 8 years or was aged less than 21 years; all employees came
from an English speaking background and to the applicant’s knowledge no circumstances
existed to warrant any additional steps being taken.26
[50] The process adopted by the applicant was reasonable in ensuring that the terms of the
Agreement and the effect of those terms were explained to the employees.
[51] The CFMMEU rely extensively on the Federal Court decision of One Key Workforce
Pty Ltd v CFMEU (One Key) and the subsequent Full Court appeal decision in CFMEU v
One Key Workforce Pty Ltd. I am satisfied the factual circumstances in this application are
markedly different from those which applied in One Key.
[52] In One Key there were no face to face meetings, the agreement for approval covered
classifications in 11 awards, the 3 employees voting on the agreement only worked across two
awards and could not give informed consent in regard to occupations and industries in which
they did not work.27 Those circumstances, or anything similar, do not exist in this application.
[53] The CFMMEU further submits that there was no genuine agreement as the employees
were not advised of the Agreement’s terms and conditions which are less beneficial than the
Award. The statutory declaration of Mr Ditchfield states at 3.5 that there are no less beneficial
terms and conditions. This assertion is incorrect as conceded by the applicant in their further
26 Applicant’s written submission 3 October 2018 at [20]
27 [2018] FCAFC 77 at [155] and [164]
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14
written submissions. Where less beneficial terms have been identified by the applicant, the
applicant has provided undertakings to ensure that the Award terms and conditions apply.
[54] The identified less beneficial terms and conditions are discussed below in respect to
the better off overall test (BOOT). The foremost less beneficial terms of the Agreement as
submitted by the CFMMEU relate to wages and the working of overtime. Contrary to the
CFMMEU submissions, the applicant does not accept that the wages and overtime terms of
the Agreement are less beneficial than the Award, instead stating that the CFMMEU have
misinterpreted the wording of the Agreement. For the reasons provided below, the
Commission is satisfied that the wages and overtime provisions of the Agreement are not less
beneficial than the Award.
[55] There is no direct legislative requirement for an employer to raise with employees any
or every less beneficial provision in comparison with the Award, however it may be a factor
for the Commission to take into account in applying s.180(5) of the Act.
[56] In this application, the Commission accepts that there are less beneficial provisions in
the Agreement than those contained in the Award; these are identified below in discussing the
better off overall test (BOOT). This required further Commission enquiry, having regard to
Mr Warren Ditchfield’s F17 statutory declaration incorrectly stating that there are no lesser
benefits. 28
[57] The identified less beneficial conditions identified below are not substantial in their
nature and an undertaking has been provided by the applicant to provide no less than the
Award provision in each case. All employees covered by the Agreement when it was made
have lengthy service with the applicant, were bargaining representatives for the Agreement,
and have been shown the undertakings and support Commission approval of the Agreement.
Further, the rates in the Agreement are well above those in the Award.
[58] Having regard to the process set out in the applicant’s statutory declaration, and the
further written explanation of the process undertaken by the applicant, the Commission is
satisfied that all reasonable steps were taken to explain the terms of the Agreement to
employees as per s.180(5) of the Act. I am satisfied that the employees were in a position to
cast a fully informed vote in the sense that they were aware of the terms of the Agreement and
the effect of its terms.
BOOT
[59] As set out in s.186(2)(d) of the Act above, in order to approve an enterprise agreement
the Commission must be satisfied that the Agreement passes the BOOT.
[60] Section 193(1) of the Act defines the BOOT in the following manner:
“193(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.”
28 See comments of Full Bench in CFMEU v Shamrock Civil Pty Ltd [2018] FWCFB 1772
[2019] FWCA 661
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[61] Section 193(3) of the Act defines the ‘test time’ as being when the application for
approval of the Agreement was made. The negotiation of an enterprise agreement allows the
employer and its employees to negotiate an agreement that best fits the business and
employee needs of the enterprise. As the objects of Part 2-4 Enterprise Agreements of the Act
state, there is a focus on providing a simple, flexible and fair process that enables collective
bargaining at the enterprise level that delivers productivity benefits. On this basis, it is
unremarkable that some terms and conditions of an enterprise agreement will be less
beneficial than that provided by the relevant award while other terms and conditions will
provide a greater benefit. Where this occurs, the Commission is required to be satisfied that
each employee would be better off overall. This requires a global assessment to be conducted,
rather than the identification of any single provision. As defined in the 5th edition of the
Australian Concise Oxford Dictionary, ‘overall’ means ‘taking everything into account’;
‘taken as a whole’.
[62] This approach was taken by the Full Bench in Armacell Australia Pty and Others29
where they stated:
“The BOOT, as the name implies, requires an overall assessment to be made. This
requires identification of terms which are more beneficial for an employee, terms
which are less beneficial and an overall assessment of whether an employee would be
better off under the agreement.”
[63] As such the application of the BOOT is an all-embracing and comprehensive test
requiring the identification of the terms which are more beneficial and those which are less
beneficial for an employee. An overall assessment as to whether an employee would be better
off under the Agreement is then undertaken by the Commission.30
[64] The CFMMEU submission identifies a number of less beneficial provisions when
compared to the Award and concludes that the Agreement does not pass the BOOT.
Wages and Allowances
[65] The CFMMEU refers to the Entry Level hourly rate of $25.38 per hour and its
description as a loaded rate as per clause 2.1(b) of the Agreement, which results in the non-
payment of shift allowance, overtime and weekend penalties.31 At the ‘test time’32 an Entry
Level employee can be compared to a Level 3 Mineworker in the Award33 whose hourly rate
is $24.53 per hour. When considering the Agreement rate is a loaded rate, $25.38 per hour is
less beneficial than the Award rate even accounting for the Agreement’s Productivity
Payment of $5.69 paid on all hours.34
29 [2010] FWAFB 9985 at [41].
30 See also AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; National Tertiary Education Union v University of
New South Wales [2011] FWAFB 5163; Solar Systems Pty Ltd [2012] FWAFB 6397
31 CFMMEU submissions 17 September 2018 at [61]
32 S.193(6) of the Act
33 It is assumed that the Level 3 Mineworker is a Mineworker under the Award who is neither a Mineworker Advanced or
Specialised see Schedule A at A.4 of the Award, see CFMMEU submissions 17 September 2018 at [62]
34 Clause 2.2
http://www.fwc.gov.au/decisionssigned/html/2012fwafb6397.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb5163.htm
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb1833.htm
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[66] The CFMMEU submits that where an even time roster is worked, (which is not
uncommon in the coal industry), working a 12 hour shift roster as 10 ordinary hours and 2
overtime hours an Entry Level employee under the Agreement is $195.10 per week worse off
than under the Award.35
[67] It is submitted that a Level 1 classification in the Agreement, an employee at Level 3
under the Award would be in a more beneficial position under the Agreement whereas an
Award Level 4 and Level 5 employee under the Award would be in a less beneficial
position.36
[68] The CFMMEU also point to the Agreement not containing certain Award allowances.
It is acknowledged by the CFMMEU that the Agreement’s first aid allowance is slightly
higher that the Award allowance.
[69] The applicant in its response points to the Agreement terms which provide for a tool
allowance and meal allowance equivalent to the Award provisions and the first aid allowance
which is more beneficial than the Award allowance. The applicant submits that some Award
allowances have no application to employees and any otherwise applicable allowance has
been incorporated in the hourly rate or Productivity Payment which has been set at a rate to
more than compensate for the non-payment of any Award allowances.37
[70] The applicant disputes that the Agreement fails the BOOT and states that the
CFMMEU’s assertions are based on an erroneous understanding of the terms of the
Agreement.
[71] The applicant states that the wage rates are not loaded rates in the sense that they are
payable for all hours worked, regardless of whether overtime or other penalties or shift
loadings apply. The applicant submits that this is made clear as the Agreement makes
provision for the payment of overtime, allowances, shift loadings, public holiday rates, and
other benefits.
[72] I accept that the wording in clause 2.1 Rates of Pay at subclause (b) could lead a
reader of the clause to understand that the rates of pay are inclusive of all of the other
payments, with the exception of the Productivity Payment and allowances in the Agreement.
On this basis, an undertaking was requested and provided by the applicant stating that
irrespective of subclause 2.1(b) employees are entitled to the payment of overtime,
allowances, shift loadings, public holiday rates, and other benefits provided for under the
Agreement. This deals with the issue raised by the CFMMEU.38
[73] The applicant acknowledges, as contended by the CFMMEU, that the table of rates
attached to its F17 contained a number of errors which it submits was inadvertent and
subsequently provided a revised table in its written submissions of 3 October 2018. The
applicant submits the revised rates produce a more favourable outcome for employees.
35 CFMMEU submissions 17 September 2018 at [54] and subsequent amendment of 13 December at paragraph [4]
36 CFMMEU submissions 17 September 2018 at [56]
37 Submission of 3 October 2018 at [50]
38 See Undertaking 2 in Annexure A
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[74] In the applicant’s written response to the CFMMEU concerns dated 3 October 2018,
the applicant states that it incorrectly compared the Entry Level employee under the
Agreement to that of a Level 3 Mineworker under the Award.39 The Entry Level employee
under the Agreement is in fact equivalent to the Mineworker training classification under the
Award as set out in the Table below.
[75] The applicant also submits that the Agreement’s hourly rates are in excess of the
Award hourly rates for all equivalent classifications in the range of 10.6% for an Entry Level
employee and up to 43% for a Plant Mechanic as shown below:
[76] In addition, the hourly rates are supplemented by a Productivity Payment of $5.69 per
hour which is also paid during any overtime.
[77] The applicant submits that contrary to the views expressed by the CFMMEU the
Agreement provides for separate overtime entitlements that are paid in addition to the hourly
rates and Productivity Payment. It is put that as the CFMMEU’s calculations are based on the
Agreement not providing for overtime that forms part of the roster, their calculations are
flawed.
[78] Rostered overtime is provided for pursuant to sub clauses 3.1(a), (b) and (d).
Consistent with the applicant’s submissions it appears clear to the Commission that the
Agreement provides for overtime rates for rostered overtime as is demonstrated by subclause
3.1(iii) where it states:
“All overtime included in the roster will be paid at double time.”
39 As there is no Level 3 classification under the Award this reference is assumed to be Mineworker under the Award
Award classification Award rate EA classification EA rate % Mineworker - $22.51 Entry Level (less $25.38 12.6% Induction level 1 than 12 months $22.95 experience) Mineworker - $25.38 10.6% Induction level 2 Mineworker - $22.95 $25.38 10.6% training Mineworker $24.53 Level 1 $31.72 29.3% Mine worker - $25.72 $31.72 23.3% advanced Mine worker - $28.36 $31.72 11.9% specialised Mineworker $24.53 Leading Hand $33.55 36.8% Mineworker - $25.72 $33.55 30.4% advanced Mineworker - $28.36 $33.55 18.3% specialised Mineworker - $25.72 Plant Mechanic $36.79 43% advanced Mineworker - $28.36 $36.79 29.7% specialised
[2019] FWCA 661
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[79] The applicant further states that the entitlement to treble time for work performed on a
public holiday is provided for at subclause 2.9.3 and as stated above this entitlement is not
removed by the wording in subclause 2.1(b).
[80] The applicant also states that the CFMMEU’s calculations do not factor in the shift
loadings under the Agreement in respect to afternoon and night shift payable under subclause
3.1(d)(iv).
[81] The applicant has provided an Agreement/Award comparison for a 7-day even time
roster over 4 weeks with 12 hour shifts, using the smallest percentage differential between the
Award and Agreement rates of 10.6% being the Agreement Entry Level classification (less
than 12 months experience) compared with an Award Mineworker Induction Level 2
classification. The comparison has been conducted with the corrections the applicant has
identified. The applicant’s comparison shows the entry level employee significantly better off
over a 4 week period. As stated above for the other classifications the Agreement rates are
higher again than the Award rates.
[82] The Commission’s own analysis40 set out below confirms that the Agreement provides
a significantly higher wage rate outcome than the Award.
FWC MODELLING BASED ON 7 DAY ROSTER PROVIDED BY APPLICANT INCLUSIVE
OF PRODUCTIVITY ALLOWANCE ON ALL HOURS INCLUDING OVERTIME,
EXCLUSIVE OF ANNUAL LEAVE
Agreement
Ordinary Rate
Entry Level $25.38
Award
Ordinary
Rate
Mineworker
Induction
Level 2 $22.95
Hours Loading
weekly
total Hours Loading
weekly
total
Mon - Fri
dayshift 50 100% $1,269.00
Mon - Fri
dayshift 50 100% $1,147.50
Mon - Fri
nightshift 50 125% $1,586.25
Mon - Fri
nightshift 50 125% $1,434.38
Sat - day shift 10 200% $507.60
Sat - day shift
1st four hours 4 150% $137.70
Sun - day 10 200% $507.60 Sat thereafter 6 200% $275.40
Sat - night 10 200% $507.60 Sun - day 10 200% $459.00
Sun - night 10 200% $507.60
Sat - night
first 4 hours 4 150% $137.70
Overtime -
rostered 28 200% $1,421.28 thereafter 6 200% $275.40
$0.00 Sun - night 10 200% $459.00
$0.00 overtime 28 215% $1,381.59
Allowances Amount Value Allowances Amount Value
Allowance -
productivity
allowance on 168 $5.69 $955.92
Dirty work -
per shift 30 $1.90 $57.00
40 Using a 25% loading for night shift
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all hours
worked
$0.00
Confined
spaces - per
hour 100 $0.67 $67.00
$0.00
Height
money - per
shift 30 $1.90 $57.00
Totals 168.00 Hrs $7,262.85 Totals 168.00 Hrs $5,888.67
Agreement 4 weekly rate $7,262.85 Model Note:
The Award ordinary hourly rate used is that
applicable at test time [s.193(6)]Award total 4 weekly rate $5,888.67
Dollar / Actual Percentage
Difference
$1,374.19
23.34%
Time off instead of payment for overtime
[83] The CFMMEU note that the Agreement does not provide for time off instead of
overtime as does the Award at clause 17.9 and that this should be given some weight as a less
beneficial term.41
[84] The applicant in response submits that this does not lead to any detrimental impact as
the Award does not guarantee this right to employees but requires written agreement between
the parties. The absence of such a provision is a consideration that the Commission has had
regard to although it would appear that such an arrangement could be achieved by use of the
Flexibility Term at clause 4.9 of the Agreement.
Casual clause
[85] The Agreement at subclause 4.2(b) provides for casual employment with a loading of
25% of the ordinary time rate in lieu of annual and personal leave and payment for public
holidays, whereas the Award does not provide for casual employment.
[86] The CFMMEU argue that the inclusion of a casual employment provision is a less
secure form of employment and the casual loading is insufficient to compensate for the
detriments of casual employment and, as such it is a less beneficial term. The CFMMEU’s
submission regarding the Agreement having a loaded rate42 can be dismissed on the basis the
applicant states this is a misunderstanding of the Agreement and the applicant has given an
undertaking in this regard. The undertaking clarifies that casual employees receive their
casual loading on the public holiday penalty.43
[87] Whether a casual employment provision is a benefit or detriment is a matter for the
Commission to consider in applying the BOOT.44 It is noted that the Award provides for the
employment of casuals in Staff classifications for which a 25% loading is paid in lieu of leave
41 CFMMEU written submissions of 17 September 2018 at [68]
42 Ibid at [75], [77]
43 See Undertaking 10 in Annexure A
44 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at [209]
[2019] FWCA 661
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entitlements under the Award. 45 In the Full Bench decision of Construction, Forestry, Mining
and Energy Union v SESLS Industrial Pty Ltd46 the Full Bench stated that the 25% loading for
casual staff employees in the Black Coal Award is a matter that can be taken into account
when considering the adequacy of a 25% loading in an agreement covering production and
engineering workers for BOOT purposes.47
[88] Whether a casual employment provision is a benefit or detriment to employees is a
matter upon which reasonable minds may differ. While a casual engagement is less secure
than permanent employment, it will suit some employees due to their personal circumstances
and preferences.
[89] The Full Bench in the 4 yearly review of modern awards - Casual employment and
Part-time employment, after hearing extensive evidence from a variety of sectors, stated:
“ … it can at least be concluded that a significant proportion of casual employees,
probably a majority of them, are satisfied with their current casual employment
arrangements and do not want permanent employment or additional working hours …
.” 48
and then noted:
“Equally, a significant proportion of casual employees have accepted their current
casual employment because it was the only work available, and would prefer
permanent employment and/or additional hours.”49
[90] The inclusion in an Agreement of a casual engagement term may dispense with the
need for the engagement of contactors, labour hire or the need for permanent employees to
work overtime; these are unknown factors the Commission is unable to speculate on. The
applicant points to the incidence of enterprise agreements for production and engineering
employees in the coal industry which contain casual employment provisions which have been
held by the Commission to pass the BOOT.
[91] I have taken into account the 25% loading to be paid to casual employees and the
undertaking from the applicant that casuals will be paid a minimum of 4 hours for each
engagement50 and conclude that the inclusion of a casual employment provision in the
Agreement is a neutral consideration for the purposes of the BOOT.
Termination of employment
[92] The CFMMEU note that the Award provides that where an employee is terminated by
reason of retrenchment, retirement at or after age 60, or by the employer due to ill health or
death, an employee who has a personal leave accrual of 70 more hours is paid out that leave at
the base rate. Such a provision is not contained in the Agreement. The Award entitlement to
45 Clauses 10.1 and 10.4
46 [2017] FWCFB 3659
47 Ibid at [45]
48 [2017] FWCFB 3541 at [350]
49 These observations are not specifically directed to the Black Coal Award
50 See Undertaking 5 in Annexure A
[2019] FWCA 661
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be paid any accumulated personal leave if terminated whilst on personal leave until the
employee has no further accumulation of personal leave, or until the employee is fit for duty,
whichever occurs first, is also not contained in the Agreement.
[93] The applicant acknowledges that the Agreement does not contain the entitlements
found at clause 13.5(b) of the Award and, to this end, has provided an undertaking that clause
13.5(b) of the Award will be taken to be a term of the Agreement.51
Crib time
[94] The CFMMEU submit that the Agreement’s Crib Time provision at clause 3.5 is less
beneficial than the Meal break provision contained in the Award at clause 24. Although the
Agreement’s crib time entitlement is formulated differently from that of the Award, I am
satisfied that when considered in total it compares favourably to the Award provision and
there is no detriment to an employee under the Agreement. Both provisions allow employees
to take two 30 minute paid crib breaks following the working of two periods of 5 hours.
Shift start and finishing times
[95] The CFMMEU submits that the Award provisions in respect to shift start and finish of
shifts is more beneficial than the Agreement. For shifts with ordinary hours in excess of 10
hours, the starting and finishing times must be agreed between the employer and the majority
of affected employees.
[96] The applicant submits that on balance, the Agreement in respect to shift starting and
finishing times is comparable if not more beneficial than the Award. The Agreement imposes
an obligation on the applicant to consult with affected employees regardless of the shift length
prior to determining the starting and finishing times of each shift. The Award has no such
obligation and for shifts up to 10 ordinary hours in length allows the employer at its sole
discretion to determine the start and finish times. Consultation and agreement of the majority
of affected employees under the Award is only applicable for shifts in excess of 10 ordinary
hours.
[97] The Agreement provides at clause 3.1(c) for a Monday to Friday roster with hours up
to 10 hours per shift and for a 6 week roster and 7 day roster where the daily hours are 10.5
hours and 12 hours per shift.
[98] Where 12 hour shifts are worked the Award provision would be more beneficial for
the affected employees. This is a consideration in the application of the BOOT by the
Commission; however, the applicant has stated52 that it does not roster employees for 12 hour
shifts with 10 hour rosters being the norm.
Shift start and finishing place
[99] The CFMMEU state that the Agreement’s shift starting and finishing place provisions
are inferior to those contained in the Award. The Award provides that the shift starting and
51 See Undertaking 6 in Annexure A
52 Email of 11 December 2018
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finishing place is to be agreed between the employer and the majority of affected employees,
and for underground mines the starting and finishing place shall be on the surface.
[100] The Agreement provides that the designated starting and finishing places for
employees will be at their pre-shift briefing location as nominated by the employer at the
mine.
[101] The applicant acknowledges that the Award provision provides a more beneficial
condition than the Agreement in this respect, but states that contrary to the CFMMEU
assertion, working time commences at the sign-on location not the actual place of work. This
is a consideration in the application of the BOOT by the Commission.
Overtime meal breaks and meal allowances – non-rostered overtime
[102] It is submitted by the CFMMEU that under the Agreement there is no entitlement to a
meal break where an employee is required to work more than 1.5 hours (exclusive of crib
time) beyond their rostered shift and no entitlement to a meal allowance or provision of a
meal after 4 hours overtime.
[103] The applicant states that, although worded differently, the Agreement provides an
entitlement to a meal break where an employee is required to work non-rostered overtime at
subclause 3.1(d)(i) and where the rostered hours are greater than 10.5 hours a further 30
minute meal break or one 60 minute break is provided. The applicant states the Agreement at
subclause 3.1(k) provides for an entitlement to a meal allowance together with a crib break
after each 4 hour period of overtime in a manner consistent with the Award.
[104] The applicant in correspondence of 21 January 2019 states that employees do not work
overtime that is not continuous with their roster. Despite this, and as the Award provides for a
paid meal break after 5 hours non continuous overtime, an undertaking has been provided to
reflect the Award entitlement at 17.8(d) of the Award.53
[105] I am satisfied that together with the undertaking provided, employees will enjoy
equivalent entitlements under the Agreement as compared to the Award in respect of meal
breaks.
Mixed functions
[106] The Award provides that where an employee performs mixed functions on any shift
they must be paid for the whole of that shift at the rate prescribed for the highest of any such
function. As the Agreement does not contain such an entitlement the CFMMEU submit that
this is a less beneficial condition.
[107] The applicant states that while the Agreement does not contain such a term, the
possibility of employees working across multiple classifications is unlikely given the way in
which the classifications are set out. A multiple number of classifications have been
consolidated into a single broader classification under the Agreement with a single rate of pay
paid for 3 or 4 award classifications. On this basis it is not necessary to include a high duties
clause as it would not be possible for employees to perform the higher provision without first
53 See CFMMEU 17 September 2018 submissions at [92]; See Undertaking 11 & 12 in Annexure A
[2019] FWCA 661
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obtaining training or qualifications and, when that training had been undertaken, the employee
would fall under the higher classification.
[108] The Agreement classification structure is different from that of the Award as a number
of classifications have been broad banded into 4 separate pay rates, thereby eliminating for the
most part the necessity for a mixed functions provisions as exists in the Award. I am satisfied
that the absence of a mixed functions provision in the Agreement does not negatively impact
on employees for the purposes of the BOOT.
Stand down
[109] The Agreement provides at clause 3.3 Stand Down that the employer may stand down
an employee for part or all of the day under certain circumstances and during this period they
are not entitled to payment. During such a period an employee may apply for and be granted
annual leave, subject to management approval. The CFMMEU submit that as the Award
applies the provisions of the Act which provides that an employee may take annual leave
during a stand down period,54 and allows for a stand down dispute to be dealt with by the
Commission, the Agreement’s terms are less beneficial than the Award as the Agreement
does not contain these provisions.
[110] While the applicant disputes that the Agreement is less beneficial when compared to
the Award they have provided an undertaking in respect to resolving this issue. The
Commission is satisfied that the undertaking,55 which it accepts, resolves any issue as to
whether the Agreement provision is less beneficial than the Award.
Rostered days off
[111] The Award contains provisions that allow for the operation of a rostered day off,
whereas the Agreement makes no reference to the operation of rostered days off. The
CFMMEU submit that the Agreement is therefore less beneficial than the Award in regard to
rostered days off.
[112] The applicant submits that as the Award states the employer can determine the type of
rosters to be worked56 there is no entitlement in the Award to rostered days off. Rostered days
off are entirely at the discretion of the employer, therefore the absence of a reference to
rostered days off in the Agreement cannot be a lesser benefit.
[113] As the applicant has determined, (as it can under the Award) that the Agreement will
not provide for rostered days off, there can be no loss of entitlement when compared to the
Award.
Redundancy notice period
[114] The CFMMEU state that the Agreement is less beneficial than the Award as the
minimum notice period for redundancy is 4 weeks regardless of the reason for the
54 See note to s.525
55 See Undertaking 7 in Annexure A
56 Clause 23.1
[2019] FWCA 661
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redundancy, whereas the Agreement confines the minimum 4 weeks’ notice to technological
change, market forces or diminution of reserve.
[115] The applicant submits that any detriment is very slight as the primary cause for a
redundancy would be the result of market forces, technological change or diminution of
reserve. However, to put beyond doubt the issue, an undertaking has been given by the
applicant to ensure that the 4 weeks’ notice applies regardless of the cause of the
redundancy.57
Inclusion of a term not in the Award
[116] Subclause 4.1(g)(ii)58 of the Agreement, as stated above, requires each employee to
comply with all safety policies, procedures and requirements. This is not an obligation
contained in the Award, and as such the CFMMEU contend that to the extent it is enforceable
against an employee under the Agreement, it is a less beneficial provision by comparison with
the Award.
[117] I note the entirety of subclause 4.1(g) of the Agreement which refers to complying
with directions relating to the safe and effective working of a mine, wearing work clothes and
safety boots provided, and correctly utilising safety clothing and protective equipment are not
provisions which are to be found in the Award, although one could safely presume that the
applicable health and safety legislation for mine sites would require employees to comply
with the obligations found at subclause 4.1(g). To the extent that the safety obligations are
enforceable as an Agreement term, the provisions are less beneficial to employees than the
Award. However, I do not find that the BOOT considerations require much weight to be
given to this observation.
National Employment Standards
[118] Section 186(2)(c) of the Act requires the Commission to be satisfied when approving
an enterprise agreement that the terms of an agreement do not contravene s.55 of the Act,
which provides that an agreement must not contravene the National Employment Standards
(NES).
Notice of termination or payment in lieu
[119] The CFMMEU contend that the Agreement’s Abandonment clause at 4.6 does not
provide for the NES notice periods or payment in lieu of notice provisions to operate where
an employee is absent from work for a continuous period exceeding 3 consecutive working
days without the consent of the employer and without notification to the employer, and is
deemed to have abandoned their employment.
[120] The applicant disputes the CFMMEU’s interpretation and submits that the clause does
not authorise the termination of an employee’s employment without the provision of a
payment in lieu of notice. In any event, to put the issue beyond doubt an undertaking has been
provided to reflect the NES requirement.59
57 See Undertaking 8 in Annexure A
58 The CFMMEU submissions and the applicant’s response refer to clause 4.1(g)(iii) which is taken to be 4.1(g)(ii)
59 See Undertaking 9 at Annexure A
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Annual leave
[121] The NES provides that an employer must not unreasonably refuse to agree to a request
by the employee to take paid annual leave.60 The relevant provision in the Agreement states
that leave will be granted unless in the employer’s opinion the operations at the mine will be
affected.
[122] The applicant submits that the Agreement provisions meet the NES requirement that
an employer must not unreasonably refuse to agree to a request to take annual leave.
Reference to operations at the mine being affected is based on the employer’s opinion being
reasonable. In any event, the applicant has provided an undertaking to remove the CFMEU’s
concerns.61
Undertakings
[123] Where the Commission has a concern that an agreement does not meet the
requirements that are set out in s.186 and s.187 of the Act, which includes that the agreement
does not pass the BOOT, s.190 of the Act provides the employer with an opportunity to
provide a written undertaking acceptable to the Commission aimed at meeting those concerns;
see Re BUPA Care Services.62
[124] In Re McDonald’s Australia Enterprise Agreement 200963 the Full Bench held that the
role of the Commission includes facilitating enterprise agreements:
“[13] The appellants emphasised the facilitative aspects of these objectives. We agree
that these objectives place the primary role for making enterprise agreements on the
parties to those agreements and their representatives and that the role of Fair Work
Australia (FWA) [as it was then known] includes facilitating the making of enterprise
agreements. In general we believe that the requirements for approval should be
considered in a practical, non-technical manner and that reasonable efforts should be
made to clarify matters with the parties and consider undertakings to clarify or remedy
concerns to the extent that these may be available under s.190 of the Act.”64
[125] I am satisfied that the undertakings provided by the applicant do not result in
substantial change to the Agreement as per s.190(3)(b) of the Act or cause financial detriment
to any employee covered by the Agreement as per s.190(3)(a). The views of the bargaining
representatives have been sought, all of whom stated they had no concerns with the
undertakings to be provided by the employer. The 15 January 2019 undertakings provided by
the applicant in regard to issues raised by the Commission and the CFMMEU are taken to be
a term of the Agreement.
[126] A copy of the undertakings is attached at Annexure A of the Agreement.
60 S.88(2)
61 See Undertaking 7 in Annexure A
62 BUPA Care Services v P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie
Murwillumbah and others [2010] FWAFB 2762 at (49).
63 [2010] FWAFB 4602.
64 Re McDonald’s Australia Enterprise Agreement 2009 [2010] FWAFB 4602 at [13].
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BOOT conclusion
[127] In comparing and making an overall assessment of the more beneficial and less
beneficial terms and conditions of the Agreement, the Commission is satisfied that the
Agreement’s rates of pay in combination with the productivity payment are superior to that of
the Award and that, together with the applicant’s undertakings relating to a number of less
beneficial Agreement provisions identified above, the Agreement provides terms and
conditions when considered overall are more beneficial than those of the Award.
[128] I am satisfied that the Agreement passes the BOOT.
Nominal expiry date
[129] Where an agreement specifies a nominal expiry date the Act at s.186(5)(b) requires
that the Commission must be satisfied that it is not more than 4 years after the day on which
the Commission approves the agreement. The nominal expiry date of the Agreement at clause
1.3 states that it is 4 years from the seventh day after approval by the Commission. In
accordance with s.54(1) of the Act the Agreement will operate 7 days from the date of this
approval. The applicant has provided an undertaking that the nominal expiry date will be 4
years from the date of approval.65
[130] The application for approval has been made within the 14 day time limit established
by subsection 185(4) of the Act.
[131] The applicant’s Form F17 Statutory Declaration in support of the application was
incorrectly signed when filed. On bringing this to the attention of the applicant a correctly
signed Statutory Declaration was provided by the applicant on 10 May 2018.
[132] I am further satisfied that each of the requirements of ss.186 and 187 and 188 of the
Act as are relevant to this application for approval of the Agreement have been met.
[133] The Agreement at clauses 4.9 and 4.10 provides that the Model Consultation and
Flexibility Term apply as per the Fair Work Regulations as terms of the Agreement.
[134] The Agreement is approved.
DEPUTY PRESIDENT
65 See Undertaking 3 in Annexure A
OMMISSION WORK R WORK THE SEAL OF THE
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