Anglo Coal (Capcoal Management) Pty Ltd

[2020] FWCA 709

[2020] FWCA 709

FAIR WORK COMMISSION

DECISION

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

Anglo Coal (Capcoal Management) Pty Ltd
(AG2020/107)

AQUILA MINE DEPUTY ENTERPRISE AGREEMENT 2019

Coal industry
COMMISSIONER BOOTH	BRISBANE, 11 FEBRUARY 2020

Application for approval of the Aquila Mine Deputy Enterprise Agreement 2019.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Anglo Coal (Capcoal Management) Pty Ltd (the Applicant) for approval of the Aquila Mine Deputy Enterprise Agreement 2019 (the Agreement). The Agreement is a greenfields agreement.

[2] This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In particular, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 3.1 – annual leave; and

•  Clause 3.5 – parental leave.

[4] However, noting the NES precedence clause at clause 5.2.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] It is also noted that at clause 2.8 of the Agreement it provides the model flexibility term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement, however it has not been provided. Accordingly, the model flexibility term will be attached and taken to be a term of the Agreement.

[6] Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the CFMMEU and that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 10 February 2024. [8]

COMMISSIONER

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