Anglo Coal (Moranbah North Management) Pty Ltd

[2024] FWCA 1638

[2024] FWCA 1638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Anglo Coal (Moranbah North Management) Pty Ltd

(AG2024/1161)

MORANBAH NORTH MINE ENTERPRISE AGREEMENT 2024

Coal industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 3 MAY 2024

Application for approval of the Moranbah North Mine Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Moranbah North Mine Enterprise Agreement 2024 (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 (Moranbah North Management) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. I note that the Agreement at clause 2.7.9 provides for loaded rates of pay however it states that loaded rates are not applicable to employees working a 5-day roster. Clause 3.3.4 of the Agreement provides 5-day roster employees with additional annual leave if they work on a public holiday. The Agreement however is silent as to any penalty payments for 5-day roster employees who work shiftwork or weekends. Correspondence was sent to the Applicant by my Chambers on 26 April 2024 raising this issue and was advised that it is unlikely that a 5-day Roster would be implemented at the mine. I am consequently satisfied that per s. 193A(6A) of the Act, that a 5-day roster is not reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 3.2.6 – Personal/Carers leave notice.

·   Clause 3.4– Compassionate Leave.

However, noting clause 1.7 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.

1. The Mining and Energy Union (MEU), Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Association of Professional Engineers, Scientists and Managers Australia, Queensland Branch (APESMA), lodged Form F18 statutory declaration’s giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the MEU, AMWU, CEPU and APESMA.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 2 May 2028.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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