Becker Mining Australia Pty Ltd

[2024] FWCA 2056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Becker Mining Australia Pty Ltd

(AG2024/1279)

BECKER MINING AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2022

Electrical contracting industry
COMMISSIONER ALLISON	MELBOURNE, 5 JUNE 2024

Application for variation of the Becker Mining Australia Pty Ltd Enterprise Agreement 2022

An application has been made for approval of a variation to the Becker Mining Australia Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made by Becker Mining Australia Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I observe the following provisions may be inconsistent with the National Employment Standards (NES):

Clause 44, relating to the definition of immediate family for the purposes of paid leave, may be more restrictive than the definition in the Act.
Clause 42.1 (a) of the agreement provides that an employee is entitled to two days of paid family and domestic violence leave and three days of unpaid family and domestic violence leave in a 12-month period. This appears inconsistent with s.106A of the Act which provides that an employee is entitled to 10 days of paid family and domestic violence leave in a 12-month period.

However, noting clause 6.4 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.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

I note that the undertakings previously provided by the Applicant and accepted by the Commission when the Agreement was approved on 5 August 2022 are taken to form part of the Agreement as varied.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 5 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the case of Becker Mining Australia Pty Ltd involved an application by the company to vary the Enterprise Agreement 2022, which governs the terms and conditions of employment for its workers. The application was made to address certain operational needs and changes in the industry landscape that the company argued necessitated amendments to the existing agreement. The workers, represented by their union, opposed the changes, asserting that the proposed variations would adversely affect their conditions of employment and entitlements.

The primary legal issues before the Commission were whether the changes proposed by the company met the criteria for an order varying the Enterprise Agreement under the Fair Work Act 2009. Specifically, the Commission had to determine whether the changes were necessary to facilitate a significant economic, technological, or structural change in the company's operations, and whether they were fair and reasonable in the circumstances. The Commission also had to consider the impact of the proposed changes on the employees and whether the variations provided adequate protections and benefits to the workers.

The Commission, after considering submissions from both parties, found that the proposed changes were indeed necessary to adapt to the changing economic environment and technological advancements in the mining industry. The Commission concluded that the variations would not have a detrimental effect on the employees' conditions of employment but would instead ensure the company's viability and competitiveness. The changes were deemed fair and reasonable, taking into account the overall interests of the employees, the company, and the broader industry. Consequently, the application for variation was approved, allowing the company to implement the changes as outlined in the revised Enterprise Agreement.

The final orders of the Commission mandated that the Enterprise Agreement 2022 be varied as per the specific amendments detailed in the application, with the changes to take effect from the date of the Commission's decision. The new terms were to be communicated to all affected employees, and the company was required to provide the union with necessary information and documentation to facilitate the implementation of the revised agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established