ENTERPRISE AGREEMENTS – pre-approval requirements – ss.180, 185, 188 Fair Work Act 2009 – application for approval of a single-enterprise agreement made by Sparta Mining Services P/L – the Construction, Forestry, Mining and Energy Union (CFMEU), whilst not a bargaining representative, sought to intervene in the proceedings and opposed the application on the basis that the Agreement did not meet the statutory approval tests under the FW Act – Decision released on 5 July 2016 which considered the CFMEU’s intervention and objections to the approval [[2015] FWC 3100] – further Decision approving the Agreement released on 6 July 2016 [[2016] FWCA 4528] – CFMEU lodged an appeal against these Decisions and raised an objection not previously taken as to whether there were reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees – Full Bench noted that the CFMEU did not raise this argument in the first instance hearing, but sought a consideration of this issue in any rehearing – Full Bench referred the matter for review with reference to the Decision in KCL – whether the approval requirements in s.186(2)(a) of FW Act were satisfied taking into account the requirement in s.188(a)(i) for compliance with s.180(2); and the requirement for s.188(c) regarding whether there are no reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees [[2016] FWCFB 7057] – parties were permitted to adduce further evidence in this process – at appeal Full Bench found ‘that the three employees who voted upon the Agreement were no longer employed by Sparta, but were now employed by another labour hire company at the same coal mine sites’ – and that ‘Sparta now employs approximately 40 employees’ – Commission found that in accordance with KCL, the three employees who voted were to be paid at higher rates and with better conditions than in the Agreement (rates which would not apply to new employees who did not vote on the Agreement), indicated that the vote was not authentic, and questioned the moral authenticity of the Agreement, as the three employees had little or no real stake in the Agreement – ALDI considered – found reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees, and therefore the approval of the Agreement (based on the further facts and recent case authorities) should be quashed – Agreement also incorporated policies and procedures by reference – evidence before the Commission was that the Sparta did not take reasonable steps to ensure access to the documents incorporated – determined that the Commission cannot be satisfied that the Agreement had been genuinely agreed to by the employees, and therefore the requirement under s.188(c) was not met – Commission held that Agreement was incapable of approval and therefore, it was proposed that an Order for the revocation of the approval Decision should issue (to be affirmed by the Full Bench) – findings on s.180(2) were simply provided to discharge all matters – determined that the Applicant had not taken reasonable steps to give a copy of, or ensure access to the documents incorporated and therefore the requirement in s.188(a)(i) for compliance with s.180(2) had not been met – approval requirement in s.186(2)(a) not satisfied – matter referred back to Full Bench. Sparta Mining Services P/L Enterprise Agreement 2016
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