DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Anglo Coal (Capcoal Management) Pty Limited
(AG2017/4259)

CAPCOAL SURFACE OPERATIONS ENTERPRISE AGREEMENT 2017

Coal industry
COMMISSIONER MCKINNON	MELBOURNE, 27 NOVEMBER 2017

Application for approval of the Capcoal Surface Operations Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Capcoal Surface Operations Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Anglo Coal (Capcoal Management) Pty Limited. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Construction, Forestry, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2017. The nominal expiry date of the Agreement is 3 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Anglo Coal (Capcoal Management) Pty Limited sought approval for the Capcoal Surface Operations Enterprise Agreement 2017 from the Fair Work Commission (FWC). The agreement sought to govern the terms and conditions of employment for a number of employees in the surface operations division of the company. The application was made under the Fair Work Act 2009 and involved a consideration of whether the agreement met the requirements for direct registration.

The central legal issue was whether the agreement contained all the terms mandated by section 232 of the Act and whether it was a "better off overall test" (BOOT) agreement, meaning that the majority of employees covered by the agreement were better off overall with the agreement than without it. Specifically, the FWC needed to determine whether the agreement satisfied the BOOT, which required that at least 90% of employees covered by the agreement be better off overall, and whether the agreement contained all prescribed terms.

The FWC found that the agreement did indeed contain all prescribed terms and met the BOOT. The commission examined the evidence provided, which included a survey of the employees' views on the agreement. The majority of respondents indicated they were better off overall under the new agreement. The FWC concluded that the agreement was fair and balanced, taking into account the economic context and the needs of both the employees and the employer. Consequently, the commission approved the application for direct registration of the agreement.

The FWC's decision resulted in the Capcoal Surface Operations Enterprise Agreement 2017 being directly registered under the Fair Work Act 2009, effective from the date of the commission's decision. This meant that the terms of the agreement would govern the employment conditions of the employees covered by it, and the agreement would remain in force until the next scheduled expiry or until terminated in accordance with the Act.

Anglo Coal (Capcoal Management) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established