Boggabri Coal Operations Pty Ltd

[2018] FWCA 2215

[2018] FWCA 2215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Boggabri Coal Operations Pty Ltd
(AG2018/840)

BOGGABRI COAL OPERATIONS PTY LTD CHPP 2016 ENTERPRISE AGREEMENT

Coal industry
COMMISSIONER CAMBRIDGE	SYDNEY, 4 JULY 2018

Application for approval of variation of enterprise agreement - application granted - enterprise agreement varied.

[1] This matter involves an application for the Fair Work Commission (the Commission) to approve of a variation of an enterprise agreement. The application has been made pursuant to s. 210 of the Fair Work Act 2009 (the Act). The application was made by Boggabri Coal Operations Pty Ltd (the employer).

[2] The application seeks approval of a variation to the Boggabri Coal Operations Pty Ltd CHPP 2016 Enterprise Agreement (the Agreement). The application was lodged at Brisbane on 6 March 2018. On 17 April 2018, the application was referred to the Commission as currently constituted. The application included a statutory declaration of Anthony Margetts dated 5 March 2018 (the declaration) made on behalf of the employer. The declaration stated that the variation to the Agreement was made on 5 March 2018. Therefore the application was made within the 14 day time limit set by subsection 210 (3) of the Act.

[3] The application seeks approval of a number of variations to the Agreement which importantly, includes an expansion of the coverage of the Agreement to include the Boggabri open cut mine (the mine). The coverage of the Agreement was, prior to any variation, confined to a discrete operational part of the mine known as the coal handling and processing plant (CHPP).

[4] The application for approval was listed for Hearing on 26 June 2018, at which time Mr I Humphreys and Ms E Mayr from Ashurst Australia lawyers, were granted permission, pursuant to s. 596 of the Act, to appear for the employer. Mr K Endacott appeared for the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). During the proceeding held on 29 May, the Commission identified the potential for the application to proceed by consent subject to the provision of undertakings.

[5] Mr Humphries and Mr Endacott indicated that following further discussions between the Parties it was anticipated that the application could proceed by consent subject to the provision of suitable undertakings, and in accordance with collateral agreements and understandings reached between the Parties. Consequently, the proceedings were adjourned to allow for the Parties to formulate undertakings and confirm any other agreements or understandings that may permit the matter to proceed by consent.

[6] The Commission has received correspondence dated 28 June 2018, from Ashurst Australia, which included further material in support of the application together with Undertakings made by and duly signed by the employer, and proposed to the Commission pursuant to s. 212 of the Act (the Undertakings). Further, the CFMMEU has provided correspondence dated 29 June 2018, which included a statutory declaration of Keenon Endacott in support of the application for variation of the Agreement.

[7] I have considered the application for approval of a variation having regard for the material filed in support of the application and the Undertakings. I am prepared to accept the Undertakings. As provided by s. 213 of the Act, the Undertakings are taken to be terms of the Agreement. In view of the Undertakings and the additional material provided in support of the application together with the material contained in the declaration, I am satisfied that the requirements of s. 211 of the Act have been met.

[8] Consequently, the variation of the Agreement is approved. In accordance with s. 216 of the Act the variation to the Agreement will come into operation on and from 16 July 2018.

COMMISSIONER

Appearances:

Mr I Humphreys and Ms E Mayr from Ashurst Australia appeared for the employer.

Mr K Endacott appeared for the Construction, Forestry, Maritime, Mining and Energy Union.

Hearing details:

2018.

Sydney:

June, 26.

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