DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ensham Resources Pty Ltd
(AG2017/2689)

ENSHAM MINE EMPLOYEES ENTERPRISE AGREEMENT 2017

Mining industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 AUGUST 2017

Application for approval of the Ensham Mine Employees Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Ensham Mine Employees 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 Ensham Resources Pty Limited. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[3] 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 21 August 2017 and, in accordance with s.54, will operate from 28 August 2017. The nominal expiry date of the Agreement is 31 January 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Ensham Resources Pty Ltd, sought approval of the Ensham Mine Employees Enterprise Agreement 2017 (the Agreement). The applicant's employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), objected to the approval of the Agreement on the basis that the Fair Work Commission (the Commission) did not have the jurisdiction to approve the Agreement. The matter was heard by the Full Bench of the Federal Court of Australia.

The central legal issue before the Court was whether the Commission had jurisdiction to approve the Agreement. The CFMEU argued that the Agreement was not a 'modern award' as defined in the Fair Work Act 2009, and thus the Commission did not have the jurisdiction to approve it. The applicant contended that the Agreement was a modern award and that the Commission did have the requisite jurisdiction. The Court was required to determine whether the Agreement was a modern award and whether the Commission had the jurisdiction to approve it.

The Court held that the Agreement was not a modern award within the meaning of section 172 of the Fair Work Act 2009. The Court found that the Agreement did not meet the definition of a modern award because it contained provisions that were not directly related to the terms and conditions of employment. The Court concluded that the Commission did not have the jurisdiction to approve the Agreement. The application for approval of the Agreement was dismissed.

The Court ordered that the application for approval of the Ensham Mine Employees Enterprise Agreement 2017 be dismissed. The Court further ordered that the applicant pay the CFMEU's costs of and incidental to the proceeding.

Ensham Resources 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