CORRECTION TO DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Corestaff QLD Pty Ltd
(AG2019/386)

Application for approval of the CoreStaff QLD Black Coal Enterprise Agreement 2019 - correction.

The decision issued by the Fair Work Commission on 5 December 2019 [[2019] FWC 8247] is corrected as follows:

[1] Heading and paragraph [36] is replaced wholly with the following:

Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Ltd

[36] The decision of the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022 (Ditchfield) (at [63 – 72]) provides a summary of the consideration that the Commission must have with regard to the ‘all reasonable steps’ requirement. These paragraphs in Ditchfield, in part, summarise Flick J’s judgment at first instance in Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 on the ‘all reasonable steps’ requirement and are also derived from Deputy President Gostencnik’s summary of the ‘all reasonable steps’ requirement in BGC Contracting Pty Ltd [2018] FWC 1466 (at [75 – 77]) and are, substantially, as follows:

(a) whether the employer has complied with the obligations in s.180(5) depends on the circumstances of the case;

(b) whether an employer has complied with s.180(5) requires the Commission to identify and assess the steps taken to ensure that the terms of the proposed agreement and their effect had been explained to the relevant employees;

(c) after considering the steps taken, the Commission must then consider whether:

(i) the steps taken were reasonable in the circumstances; and

(ii) these were all the reasonable steps that should have been taken in the circumstances.

(d) The Commission must then consider the content of the explanation given to ensure that the object of ensuring that (i) the terms of the proposed agreement and (ii) their effect, have been explained to the relevant employees in a manner that considers their particular circumstances and needs including their cultural and linguistic backgrounds and their age;

(e) the number and content of those steps comprising ‘all reasonable steps’ will depend on the circumstances. Some employers may, by reasons of the prevailing circumstances, need to take more or fewer steps than other employers with different agreements, facing different circumstances;

(f) the content of the explanation must enable relevant employees to cast an informed vote, to know the content of the agreement and to enable them to understand how their terms and conditions might be affected by voting in favour of the agreement;

(g) in order to comply with s.180(5), an employer is not always required to identify detriments in an agreement against the relevant modern award or to provide an analysis between the agreement and the modern award, particularly in circumstances where an existing enterprise agreement applies to the employees in their employment with the employer. Where this is an existing enterprise agreement in place at the time of the explanation, it is relevant to have regard to the manner and content of the explanation of the changes made in the proposed agreement relative to the existing agreement; and

(h) an employer does not fail to comply with the obligation in s.180(5) merely because an employee does not understand the explanation provided.

DEPUTY PRESIDENT

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