ENTERPRISE AGREEMENTS – approval – s.185 Fair Work Act 2009 – application for approval of a single-enterprise agreement – whether genuine agreement – whether scope fairly chosen – application to approve MTP Enterprise Agreement 2016 by Thiess P/L – no employee or union bargaining representatives – three employees said to be covered and all voted in favour of agreement – agreement will cover employees engaged to work at or in connection with Mt Pleasant Mine Project – Thiess not yet successful in obtaining contract – no Thiess employees are or have been working at Mine – if successful in gaining contract hundreds of workers expected to be employed under agreement – Thiess submitted the three employees were engaged at time of vote in work necessary for and preparatory to work at Mine on equipment owned by Thiess which it may require for project – three employees selected from Brisbane based maintenance team and sent to Nebo and Mt Thorley sites to inspect and repair equipment – Construction, Forestry, Mining and Energy Union (CFMEU) raised concerns about lack of genuine agreement and scope not fairly chosen – CFMEU allowed to be heard – submitted employees not properly informed of effects of agreement – concerned about better off overall test (BOOT) and NES – concerned about cashing out annual leave – Thiess agreed to provide undertakings regarding pay rates, annual leave provisions, including for shiftworkers, all inclusive rates (to exclude overtime which is not part of the regular roster), and how they are calculated, to meet the BOOT – Commission satisfied undertakings address concerns and do not result in financial detriment to an employee – satisfied requirements for approval were met other than issues related to legitimacy of agreement being made and scope of agreement not being fairly chosen – CFMEU submitted the three employees not covered by agreement, not operationally, organisationally or geographically distinct and had no real interest in agreement – submitted scope excludes bargaining a greenfields agreement and denies those who will be employed at Mine opportunity to bargain – Commission not satisfied work performed by the three employees fell within coverage at 3.1(b) of agreement but satisfied work would fall within scope should Thiess obtain contract – not satisfied that the employees who voted were covered by agreement – s.186(2)(a) of FW Act not met – cannot approve agreement – however, if wrong, Commission also not satisfied scope of agreement fairly chosen nor agreement genuinely agreed to by employees covered by it – ss.186(3), (3A) and s.188(c) not met – cannot approve agreement – application dismissed. MTP Enterprise Agreement 2016
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