Falcon Mining Pty Ltd recently sought to have an Enterprise
Agreement approved by the Fair Work Commission but essentially
failed in its efforts because the HR Manager neglected to satisfy
In summary, the problems associated with the Enterprise
Agreement, and the factors that the Fair Work Commission (FWC)
collectively took into consideration in reaching its decision to
refuse the application for approval included:
Incorrect statements in Form 16 (Application for approval of
the Agreement) and Form 17 (Employer declaration in support of
approval of Agreement). Specifically, the HR Manager incorrectly
named the employer in parts of Form 16 and declared in Form 17 that
the Agreement did not contain terms that were less beneficial than
those in the Award, when that was not in fact the case;
Incorrectly naming the employer in the Notice of Employee
Not taking all reasonable steps to provide and explain to
relevant employees the effect of the Agreement and its terms, and
not providing the explanation in an appropriate manner given the
rosters and other circumstances of employees;
The dispute settlement procedure set out in the Agreement was
The Agreement in part excluded the National Employment
The Agreement did not pass the BOOT (better off overall
The Commission acknowledged that undertakings could address the
BOOT issues if the Agreement were to be approved. However, the
number of undertakings required to address the concerns about the
Agreement would result in substantial changes to the Agreement and
therefore it didn't meet the requirements of section 186
(General requirements – when the FWC must approve an
enterprise agreement) and section 187 (Additional requirements
– when the FWC must approve an enterprise agreement).
Not getting an enterprise agreement approved can create
significant grief and sometimes embarrassment for a business, so
it's really important to get all the steps right from the
beginning. Having sound knowledge of the stringent procedural
requirements is a great starting point.
If you are thinking about introducing an enterprise agreement
into your workplace, it's important to first consider the
reason for wanting to introduce one (they aren't necessary or
suitable for all workplaces), and then before undertaking the
process, making sure you have knowledge of all the procedural rules
you need to comply with in order to properly introduce one. Coleman
Greig's employment law team can help with
enterprise agreements for your workplace:
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The case is positive news for employers facing a compensation claim for a stress-related injury from disciplinary action.
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