Clarence Coal Pty Limited

[2023] FWCA 698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Clarence Coal Pty Limited

(AG2023/373)

Clarence Colliery Enterprise Agreement 2023

Mining industry
COMMISSIONER MIRABELLA	MELBOURNE, 3 MARCH 2023

Application for approval of the Clarence Colliery Enterprise Agreement 2023.

Clarence Coal Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Clarence Colliery Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry, Maritime, Mining and Energy Union; the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

The Agreement was approved on 3 March 2023 and, in accordance with s.54, will operate from 10 March 2023. The nominal expiry date of the Agreement is 26 November 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Clarence Coal Pty Limited applied to the Fair Work Commission for approval of the Clarence Colliery Enterprise Agreement 2023. The company sought to amend certain provisions of the agreement, which governs the employment of its workers. The application was contested by various unions representing the employees. The central issue before the Fair Work Commission was whether the proposed amendments to the enterprise agreement met the legal requirements for approval. Specifically, the court had to determine if the amendments complied with the Fair Work Act 2009, particularly concerning the processes followed in reaching the agreement and whether the changes were fair and reasonable.

The Fair Work Commission considered several factors in its decision. Firstly, the court examined the process by which the agreement was negotiated, ensuring it was conducted in good faith and involved meaningful consultation. Secondly, the Commission assessed whether the amendments met the criteria for being "better off overall or at least as well off" for the employees. It also evaluated if the changes were necessary to maintain the economic viability of the business. After reviewing the evidence and submissions from both parties, the Fair Work Commission found that the process was fair and the amendments were reasonable. The Commission approved the Clarence Colliery Enterprise Agreement 2023 with the proposed changes.

The Fair Work Commission's decision concluded that the amendments to the enterprise agreement met the statutory requirements. The Commission was satisfied that the agreement was negotiated in good faith and that the changes were fair and reasonable for the employees. The court's approval of the amended agreement allows the company to implement the changes as per the new terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established