What is ‘fairly chosen’?

When a mine construction contractor wanted to have an enterprise agreement on a site-specific basis to operate simultaneously with other geographically based agreements, it ran into problems based on the “fairly chosen” criteria of the Fair Work Act.

At first instance, the Fair Work Commission refused to approve the agreement, principally on the grounds that employees from other sites could be redeployed from where they were, to work on this site; this the FWC said, meant those other employees were not involved in making the agreement, therefore the group of employees was not “fairly chosen”.

The employer appealed and was successful because the correct approach was to focus on the employees who were actually there at the time and working in jobs on that site and in jobs whose classifications were included in the proposed agreement.

The appeal decision includes the important explanation that “an agreement can only be made by a vote of the employees who will be covered by it”. The decision rejected the notion that the employer should have sought the views of other employees who might later have been called upon to work at that site.

The commission took into account that the proposed agreement was not intended to cover all the employees of the employer, so FWC then had to decide if those who were to be covered had been fairly chosen. In carrying out that assessment, the commission looked to see if the selected employees were operationally, geographically or organisationally distinct from those that were not to be covered. These are the essential criteria the legislation sets out for determining the fairly chosen question.

Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206 (12 April 2012)

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