Anglo Coal (Capcoal Management) Pty Ltd

[2019] FWCA 6384

[2019] FWCA 6384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Anglo Coal (Capcoal Management) Pty Ltd
(AG2019/3075)

AQUILA MINE OPERATIONS ENTERPRISE AGREEMENT 2019

Coal industry
COMMISSIONER LEE	MELBOURNE, 13 SEPTEMBER 2019

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

[1] An application has been made for approval of a greenfields agreement known as the Aquila Mine Operations Enterprise Agreement 2019 (the Agreement). The application was made by Anglo Coal (Capcoal Management) Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 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 accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Maritime, Mining and Energy Union is 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] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] I note that clause 2.10 of the Agreement provides that the Employer may deduct payment from an employee’s remuneration for refusal of duty, neglect of duty or misconduct. In my view, the clauses may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 2.5.4 – Casual Employment;

•  Clause 3.1 – Annual Leave; and

•  Clause 4.1.5 – Termination of Employment.

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] I also note that clause 3.2.3 of the Agreement provides that employees may take personal leave to deal with issues relating to Family and Domestic Violence. I am satisfied that the undertaking provided will ensure that employees are entitled to five additional unpaid days for family and domestic violence leave in accordance with s. 106A of the Act.

[7] Clause 3.5 of the Agreement states that employees are entitled to parental leave in accordance with the Anglo American policy. I am satisfied that as a result of the undertaking provided, employees will receive no less than the NES entitlement.

[8] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 September 2019. The nominal expiry date of the Agreement is 12 September 2023.

COMMISSIONER

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Annexure A