Ernest Henry Mining Pty Ltd

[2021] FWCA 2349

[2021] FWCA 2349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ernest Henry Mining Pty Ltd
(AG2021/4496)

ERNEST HENRY MINING ENTERPRISE AGREEMENT 2021

Mining industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 28 APRIL 2021

Application for approval of the Ernest Henry Mining Enterprise Agreement 2021.

[1] Ernest Henry Mining Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Ernest Henry Mining Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

● Clause 3.1(a) – Full-time Employment;

● Clause 3.3(g) – Termination of Employment; and

● Clause 6.2(c) – Personal/ Carer’s Leave.

[3] However, I note clause 6.7 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[4] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 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 s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[6] The Australian Workers Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 5 May 2021. The nominal expiry date of the Agreement is 28 April 2025.

DEPUTY PRESIDENT

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