DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Delta Mining Pty Ltd
(AG2017/664)

DELTA MINING PTY LTD SOUTH WESTERN DISTRICT CONTRACTORS WORKPLACE AGREEMENT 2017

Coal industry
COMMISSIONER CIRKOVIC	MELBOURNE, 17 MARCH 2017

Application for approval of the Delta Mining Pty Ltd South Western District Contractors Workplace Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Delta Mining Pty Ltd South Western District Contractors Workplace 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 Delta Mining Pty Ltd. 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, 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 17 March 2017 and, in accordance with s.54, will operate from 24 March 2017. The nominal expiry date of the Agreement is 17 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Delta Mining Pty Ltd has applied to the Fair Work Commission for approval of the Delta Mining Pty Ltd South Western District Contractors Workplace Agreement 2017. The applicants sought to have the agreement made a certified agreement under the Fair Work Act 2009, which would enable them to pay their employees less than the minimum rates of pay otherwise stipulated in the relevant award. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) who argued that the agreement was not a lawful agreement, and therefore not eligible for certification. The dispute was heard by Deputy President Finn and the CFMEU was represented by counsel. The issues before the court were whether the agreement was a lawful agreement under the Fair Work Act 2009, and whether the applicants had genuinely agreed to the terms of the agreement. The court found that the agreement was a lawful agreement. The court accepted the evidence of Delta Mining's CEO that the agreement was the result of genuine negotiations between the parties, and that the agreement had been signed by the parties' representatives. The court found that the CFMEU's evidence did not demonstrate that the agreement was not a genuine agreement, and therefore the agreement was a lawful agreement. The court ordered that the agreement be approved as a certified agreement.

Delta Mining 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