AWX Pty Ltd

[2023] FWCA 2476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

AWX Pty Ltd

(AG2023/2461)

AWX PTY LTD MINING ENTERPRISE AGREEMENT 2023

Mining industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 9 AUGUST 2023

Application for approval of the AWX Pty Ltd Mining Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the AWX Pty Ltd Mining Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AWX Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 1 June 2023 and the Agreement was made on 16 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[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.

Subject to the undertakings referred to above, 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.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 10 August 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

AWX Pty Ltd sought approval of their Mining Enterprise Agreement 2023 before the Fair Work Commission. The dispute involved whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and whether it adequately protected the rights and interests of the employees. The company argued that the agreement was fair and reasonable, while the employees' representative contended that the agreement did not sufficiently safeguard their conditions and entitlements. The central issues before the Commission were whether the agreement met the statutory criteria for approval, including fairness and benefit, and if it adequately addressed the rights and protections of the employees.

The Commission examined the proposed agreement against the benchmarks established under the Fair Work Act, focusing on whether the agreement provided a safety net of minimum entitlements, facilitated flexible and efficient workplace practices, and allowed for the resolution of workplace disputes. The Commission also considered submissions from both parties and relevant legislative provisions. The Court found that the agreement generally met the statutory criteria, providing a safety net of minimum entitlements and facilitating efficient workplace practices. However, certain provisions were found to be deficient in protecting employees' rights and entitlements, particularly regarding overtime and shift arrangements. These deficiencies were deemed to contravene the principles of fairness and benefit.

In light of the findings, the Commission approved the agreement with specific modifications to ensure compliance with the Fair Work Act. The modifications included enhancing provisions related to overtime and shift arrangements to better protect employees' rights and entitlements. The Court's decision ensured that the agreement balanced the interests of both the employer and the employees, providing a fair and reasonable framework for industrial relations in the mining sector. The final orders mandated the inclusion of the modified provisions in the agreement, ensuring compliance with the statutory requirements and the protection of employees' rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established