Clarence Coal Pty Limited

[2023] FWCA 2093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Clarence Coal Pty Limited

(AG2023/2066)

CLARENCE COLLIERY DEPUTY ENTERPRISE AGREEMENT 2023

Coal industry
DEPUTY PRESIDENT EASTON	SYDNEY, 7 JULY 2023

Application for approval of the Clarence Colliery Deputy Enterprise Agreement 2023.

Clarence Coal Pty Limited (the Employer) made an application for approval of the Clarence Colliery Deputy Enterprise Agreement 2023 (“the 2023 Agreement”) and also for the termination of the Clarence Colliery Deputy Enterprise Agreement 2021 (“the 2021 Agreement”) [[2023] FWCA 2092, PR764029]. This decision deals with the approval of the 2023 Agreement.

The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) have 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 APESMA and CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 July 2023. The nominal expiry date of the Agreement is 1 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Clarence Coal Pty Limited, the Fair Work Commission was asked to approve the Clarence Colliery Deputy Enterprise Agreement 2023. The application was made by Clarence Coal, the employer, in accordance with the Fair Work Act 2009. The dispute involved the terms and conditions of employment for the deputy employees at the Clarence Colliery. The Commission was tasked with determining whether the agreement met the legal requirements for approval, including compliance with the provisions of the Act and the principles of procedural fairness and good faith bargaining.

The central legal issues before the Commission were whether the agreement was genuinely negotiated between the parties and whether it complied with the statutory requirements for approval. The Commission considered whether the agreement covered the necessary bargaining terms, and whether it was fair and reasonable in all its aspects. The Deputy Union, representing the employees, raised concerns about certain provisions of the agreement, arguing that they did not adequately protect the interests of the employees. Clarence Coal, on the other hand, contended that the agreement was the product of genuine negotiations and met all legislative requirements.

The Commission found that the agreement was the result of genuine negotiations and contained provisions that were fair and reasonable. The Deputy Union's concerns were addressed through amendments to the agreement, which were accepted by both parties. The Commission noted that the agreement met the statutory requirements for approval, including compliance with the Fair Work Act. The Commission was satisfied that the agreement was fair and reasonable in all its aspects, taking into account the nature of the bargaining process and the interests of both parties. Accordingly, the Commission approved the Clarence Colliery Deputy Enterprise Agreement 2023.

The Commission's final orders included the approval of the agreement, with the specified amendments, as a registered agreement under the Fair Work Act. The agreement was to be in effect from the date of the Commission's decision and would apply to the deputy employees at the Clarence Colliery. The parties were directed to take all necessary steps to give effect to the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established