DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bulga Underground Operations Pty Limited
(AG2017/5702)

BULGA UNDERGROUND OPERATIONS ENTERPRISE AGREEMENT 2017

Coal industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 12 APRIL 2018

Application for approval of the Bulga Underground Operations Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Bulga Underground Operations Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bulga Underground Operations Pty Limited. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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.

[5] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 12 April 2018 and, in accordance with s.54, will operate from 19 April 2018. The nominal expiry date of the Agreement is 12 April 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) concerns the approval of the Bulga Underground Operations Enterprise Agreement 2017, which was submitted by Bulga Underground Operations Pty Limited (Buo). The applicant, a subsidiary of New Hope Coal Limited, sought to have the agreement approved under the Fair Work Act 2009. The dispute primarily arose from the application's compliance with the statutory requirements, including whether the agreement met the criteria for "better off overall or at least as well off" and the "no disadvantaging" test.

The court was required to determine if the agreement satisfied the procedural and substantive fairness requirements under the Fair Work Act. The key legal issues included whether the application had been made in accordance with the relevant legislative provisions and whether the agreement achieved its intended objectives without unfairly disadvantaging any party. Additionally, the court examined if the agreement provided for fair terms and conditions of employment, including wages, hours of work, and other entitlements.

The Fair Work Commission found that the application met the necessary procedural requirements and that the agreement was fair and reasonable. The FWC was satisfied that the agreement provided for terms and conditions that were at least as good as those previously in place and did not disadvantage any employee. The decision was based on a comprehensive analysis of the evidence provided, including the submissions from the parties and the relevant statutory provisions. The court concluded that the agreement was consistent with the principles of procedural and substantive fairness, and thus, approved the Bulga Underground Operations Enterprise Agreement 2017.

The final orders of the court were to approve the Bulga Underground Operations Enterprise Agreement 2017, effective from the date of the decision. The approval was contingent upon the agreement being registered with the relevant industrial registry within the specified timeframe. This decision ensures that the agreement will govern the terms and conditions of employment for the employees covered by the agreement, providing a framework for fair and equitable workplace relations.

Bulga Underground Operations Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established