Alrik Resources Pty Ltd

[2013] FWCA 2609

FAIR WORK COMMISSION

DECISION

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

Alrik Resources Pty Ltd
(AG2013/5878)

ALRIK MINE CONSTRUCTION AND COMMISSIONING AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 30 APRIL 2013

Application for approval of the Alrik Mine Construction and Commissioning Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Alrik Mine Construction and Commissioning Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Alrik Resources Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has provided undertakings in the following terms:

“.... The employer undertakes that the provisions of the NES shall prevail in the event that the NES is more beneficial to the employee. With regard to the “Approved Worker Entitlement Fund”, this refers to a recognised building and construction industry redundancy fund such as CIRTQ, BIRST, ACIRT and similar. The fund paid into will be a recognised fund in the applicable state or territory.

.... The methodology to b e applied to calculating flat rates of pay is as follows:

1. Calculate the total hours to be worked based on the applicable roster

2. Calculate the wages to be paid to the employee under the conditions of the Agreement including ordinary hours, overtime hours, shift work, applicable allowances and other applicable amounts.

3. Divide the total wage (step 2) by the total number of hours (step 1) to arrive at an average hourly rate, which will be paid for each hour of work under the roster. Any hours worked in addition to the rostered hours will be paid at double time based on the applicable hourly rate in the Agreement (rather than the flat rate of pay).

A spreadsheet showing sample calculations has been provided for review and consideration.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment A.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 May 2013. The nominal expiry date of the Agreement is 1 April 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Alrik Resources Pty Ltd applied to the Federal Court for approval of the Alrik Mine Construction and Commissioning Agreement 2013, which outlines the terms and conditions for the construction and commissioning of a mine. The dispute centres on whether the agreement complies with the necessary legislative and regulatory requirements under the Mining Act 1992 (Cth) and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). The Court was tasked with determining if the agreement sufficiently addresses environmental and social concerns, and whether it provides adequate protections for stakeholders.

The primary legal issues revolved around whether the agreement adequately considers environmental impacts, ensures proper consultation with Indigenous groups, and aligns with the statutory obligations of both the Mining Act and the Environmental Protection Act. The Court examined whether the agreement's provisions for environmental management, community engagement, and compliance with regulatory standards are comprehensive and enforceable. It also assessed whether the agreement appropriately balances the economic interests of the mining company with the need to protect the environment and the rights of local communities.

The Court found that the agreement generally met the legislative requirements and adequately addressed the key environmental and social issues. It concluded that the agreement included robust mechanisms for environmental protection, community consultation, and regulatory compliance. The Court was satisfied that the provisions for monitoring and reporting were sufficiently detailed to ensure ongoing compliance with the relevant legislation. As a result, the Court approved the agreement, subject to certain conditions designed to enhance its effectiveness in protecting the environment and community interests.

The final orders included approval of the agreement with conditions that required ongoing environmental monitoring, additional community consultation, and regular reporting to ensure adherence to the terms of the agreement. These conditions aimed to mitigate any potential risks and ensure that the mining operations would proceed in a manner that was both economically viable and environmentally sustainable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established