ENTERPRISE AGREEMENTS – approval – notice of representational rights – s.185 Fair Work Act 2009 – application by Falcon Mining P/L for approval of the Falcon Mining P/L Enterprise Agreement 2016 – Commission held concerns about whether agreement could be approved – Construction, Forestry, Mining and Energy Union Mining & Energy Division – Northern Mining and NSW Energy District (CFMEU) objected to approval – CFMEU was not a bargaining representative for agreement – filed a notice of representative commencing to act in respect of an employee of Falcon who would be covered by the agreement if approved – Commission decided to hear from the CFMEU pursuant to powers under s.590 of FW Act – series of errors and omissions on the part of Falcon in relation to the pre-approval process and application documents – effect of incorrect information in Notice of Employee Representational Rights (NERR) – effect of incorrect information in application documents including employer statutory declaration – requirement to take all reasonable steps to give NERR to employees – no requirement for NERR to be given to each individual employee – reasonable steps may include giving notice individually and collectively – NERR only required to be given to employees employed at the notification time – requirement to take all reasonable steps to give an explanation of the terms of the agreement and their effect to employees – other reasonable grounds for the Commission to believe that the agreement was not genuinely agreed – whether agreement contained unlawful terms – interaction between National Employment Standards (NES) and award in relation to personal/carer’s leave and public holidays – whether exclusion of NES term could be addressed by undertaking – whether agreement passed the better off overall test (BOOT) – whether undertakings required to meet Commission’s concerns about BOOT issues would result in substantial change to the agreement – approval refused. Falcon Mining P/L Enterprise Agreement 2016
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