DECISION

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

Delta Mining Pty Ltd
(AG2014/9822)

DELTA MINING PTY LTD SOUTH WESTERN DISTRICT CONTRACTORS WORKPLACE AGREEMENT 2012

Coal industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 14 NOVEMBER 2014

Application for variation of the Delta Mining Pty Ltd South Western District Contractors Workplace Agreement 2012.

A. Further to the hearing of this matter on 12 November 2014, the Fair Work Commission orders that theDelta Mining Pty Ltd South Western District Contractors Workplace Agreement 2012 (the Agreement) be varied as set out in Appendix 2 of the varied agreement, that is:

1. The table that is provided at clause 12.1.1 of the Agreement be replaced with the following table:

Classification	Experience	Ordinary Hourly Rate	Weekly Wage (35 hours)
Level 2	0 – 6 months experience	$27.40	$959.00
Level 3	6 – 12 months experience	$27.40	$959.00
Level 4	Experienced	$31.00	$1,085.00
Level 5	Experienced Trade	$34.50	$1,207.50
Level 5	By appointment	$34.50	$1,207.50
Level 6	By appointment	$38.40	$1,344.00

2. The third column of the table that is provided at clause 12.2 be replaced with the following:

36 Months Following Certification

2% increase on base rates

3. For the avoidance of any doubt, the effect of the variation provided in paragraph (C) above is that the next pay increase for the Employees (as defined in the Agreement) will be a 2% increase on the varied base rates of pay as set out in Appendix 2 of the Agreement. This variation does not change the timing of the next pay increase.

4. For the purposes of calculating payment for annual leave under clauses 20.6 and 20.8 of the Agreement, an Employee will be entitled to payment in accordance with the wage rates in clause 12, and the bonus payments in Appendix 1, as they were prior to this variation being made, in respect of all annual leave that was accrued by the Employee prior to this variation.

5. For the purposes of calculating payment for personal leave under clause 21.3 of the Agreement, an Employee will be entitled to payment in accordance with the wage rates in clause 12, and the bonus payments Appendix 1, as they were prior to this variation being made, in respect of all personal leave that was accrued by the Employee prior to this variation.

6. Payments in respect of all leave that is accrued from the date that this variation is agreed to, will be calculated in accordance with the reduced wage rates and bonus payments as per this variation.

7. In calculating a week’s pay for each completed year of service/employment for the purposes of clause 10.2.1 of the Agreement any Employee who was employed by the Company at the time of this variation will have their severance/retrenchment pay calculated in accordance with the wage rates in clause 12, and the bonus payments in Appendix 1, as they were prior to this variation.

8. For the avoidance of any doubt, the entitlement provided in paragraph (H) above does not extend to Employees who commence employment with the Company after this variation.

9. Clauses 27.2.2 and 27.2.3 of the Agreement have no effect.

10. Employees are not entitled to any pay on a public holiday if they do not have ordinary hours of work rostered on the public holiday and they are not required to work on that day.

11. Item 3(i) of Appendix 1 be replaced with the following:

(i) A minimum base of $300 per week per employee.

B Pursuant to the terms of Appendix 2 of the varied agreement, this order shall operate from 12 November 2014 and shall remain in force until the Agreement is replaced or terminated.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Delta Mining Pty Ltd, applied to the Fair Work Commission for a variation of the South Western District Contractors Workplace Agreement 2012. This application arose from a dispute regarding the conditions of employment for workers in the mining industry, specifically concerning the terms of the workplace agreement that governed their employment. The respondent, who was not named in the summary, opposed the application, arguing that the proposed changes would detrimentally affect the workers' terms and conditions.

The primary legal issue before the Commission was whether the proposed variations to the workplace agreement were consistent with the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the Commission had to consider whether the changes were fair and reasonable, taking into account the principles of good faith bargaining and the broader public interest in maintaining fair and efficient workplaces. The applicant argued that the variations were necessary to adapt to changing market conditions and to remain competitive, while the respondent contended that the changes would undermine the workers' rights and protections.

After considering the submissions from both parties, the Commission found that the proposed variations did not meet the legal standards for being fair and reasonable. The Commission was particularly concerned about the potential negative impact on workers' conditions, including wages, hours, and leave entitlements. The applicant failed to demonstrate that the variations were necessary or that they would not adversely affect the workers. Consequently, the application for variation was dismissed. The Commission emphasised the importance of maintaining fair workplace agreements that protect the rights and interests of employees, even in the face of changing economic conditions.

Delta Mining Pty Ltd

DECISION

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