DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bluestone Mines Tasmania Joint Venture Pty Ltd
(AG2020/4054)

BLUESTONE MINES TASMANIA JOINT VENTURE ENTERPRISE AGREEMENT 2020

Mining industry
COMMISSIONER LEE	MELBOURNE, 4 FEBRUARY 2021

Application for approval of the Bluestone Mines Tasmania Joint Venture Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Bluestone Mines Tasmania Joint Venture Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bluestone Mines Tasmania Joint Venture Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and The Australian Workers’ Union, being bargaining representatives for the Agreement, have both given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

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

• Clause 39(c)(ii);

• Clause 40(m); and

• Clause 18(c) and 33.

However, noting clause 4(c) 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2021. The nominal expiry date of the Agreement is 31 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Bluestone Mines Tasmania Joint Venture Pty Ltd applied for approval of the Bluestone Mines Tasmania Joint Venture Enterprise Agreement 2020. The dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. The applicant sought to have the agreement recognised as a certified agreement, which would have binding effect on the employees covered by it.

The central legal issues before the Commission were whether the agreement had been made in accordance with the procedural requirements of the Fair Work Act, and whether it contained all the mandatory terms prescribed by the Act. Specifically, the Commission had to determine whether the applicant had complied with the procedural prerequisites for the making of an enterprise agreement, including the requirement to provide a copy of the proposed agreement to the employees and the relevant employee representatives. Furthermore, the Commission needed to examine whether the agreement contained all the mandatory terms required by the Act, such as minimum wages and conditions, and whether it complied with the better-off-overall test.

In determining the application, the Commission considered the evidence and submissions provided by the parties. The Commission found that the applicant had complied with the procedural requirements for the making of an enterprise agreement. The Commission also found that the agreement contained all the mandatory terms required by the Act and that it met the better-off-overall test. Accordingly, the Commission approved the proposed agreement as a certified agreement, which will have binding effect on the employees covered by it from the date of the Commission's decision. The Commission also made orders for the registration of the agreement and the publication of its details on the Fair Work Commission's website.

Bluestone Mines Tasmania Joint Venture Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established