Evolution Mining (Cowal) Pty Limited
[2024] FWCA 1851
•21 MAY 2024
| [2024] FWCA 1851 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Evolution Mining (Cowal) Pty Limited
(AG2024/1021)
EVOLUTION MINING (COWAL) ENTERPRISE AGREEMENT 2024
| Mining industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 21 MAY 2024 |
Application for approval of the Evolution Mining (Cowal) Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Evolution Mining (Cowal) Enterprise Agreement 2024 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Evolution Mining (Cowal) Pty Limited T/A Evolution Mining (Cowal) Pty Limited. The Agreement is a single enterprise agreement. The Australian Workers’ Union (AWU) was a bargaining representative for the Agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.
Section 186(2)(c) requires the Commission to be satisfied that the agreement does not contravene s. 55 relating to the interaction between the National Employment Standards (NES) and enterprise agreements. Clause 12.1(a) of the Agreement which provides that employees receive 21 days of annual leave and clause 13 which deals with unauthorised absences may be read so as to operate in a manner which is inconsistent with the NES.
The AWU raised concerns with clause 7.4 relating to the probation period and clause 12.5 in respect of working on public holidays and sought clarity to ensure the provisions do not operate in a manner which is inconsistent with the NES.
Noting the terms of clause 3.3 of the Agreement and having regard to the submissions of the applicant as to intended operation of the Agreement, I am satisfied these concerns have been addressed. I am further satisfied that the more beneficial entitlements of the NES will prevail in the event an inconsistency may arise between the Agreement and the NES.
Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award.
Here the relevant award is the Mining Industry Award 2020. In applying the test, the Commission is required by s.193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application.
In this matter concerns were raised with the applicant that various terms in the Agreement could be less beneficial depending on the patterns or kinds of work, or types of employment, applying at the workplace. Clarity was sought as to the correct matching of classifications for Apprentices in the Agreement with the same classification in the Award. The applicant clarified that the highest trade classification in the Trade Apprentices table at Appendix A of the Agreement may be matched with the Level 3 Award classification.
A further matter was raised in respect to shift workers to assess whether the rates of pay may in some circumstances fall below Award rates. The concern raised went to rates of pay for ‘Entry Process Operator’ in the event they were to work permanent night shifts, which would attract a penalty rate of 130%. In response the applicant stated that no employees are engaged on permanent night shift for the purposes of the Award. The applicant further stated every employee either works days only or a shift pattern which includes rotating days and nights. For clarity, the Applicant indicated that the roster pattern and shift arrangements for each employee set out in Appendix A of the Agreement can be summarised, as follows:
| Agreement Shift Pattern | Roster | Shift length | Shift type | Appropriate shift penalty under the Award |
| ‘Day Worker’ | 9 DAY FORTNIGHT | 10 hours | Day only | · No penalty for days |
| ‘Non-continuous shift’ | 7/7 roster | Up to 12 hour shifts | Days only and some weekends | · No penalty for days · Between 150-200% for weekends (unless overtime is applicable) |
| ‘Continuous Shift’ | 7/7 roster | Up to 12 hour shifts | Days, nights and some weekends | · No penalty for days · 115% for night shift · Between 150-200% for weekends (unless overtime is applicable) |
A further concern was raised in relation to the Agreement appearing to be silent on a number of safeguards for part time employees which are provided for in the Award and whether these deficiencies may result in financial and non-financial detriment. The applicant indicated it does not currently engage part time employees, however it provided undertakings to address the concerns.
Given the explanations provided by the applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. I note that should the work patterns, kinds of work or types of employment under the Agreement change, an application under s.227A is available for a reconsideration of the BOOT.
A copy of the undertakings in relation to the matters raised is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised to the undertakings provided. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the undertakings, the explanations set out above and the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186 and 187 are met.
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 it. In accordance with s.201(2) I note that the Agreement covers the organisation.
The Agreement was approved on 21 May 2024 and, in accordance with s.54, will operate from 28 May 2024. The nominal expiry date of the Agreement at clause 2 is 21 May 2028.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE524704 PR775208>
ANNEXURE A
0
0
0