DECISION

Fair Work Act 2009
s.185—Enterprise agreement

FES Coal Pty Ltd
(AG2018/2778)

FES COAL PTY LTD GREENFIELD AGREEMENT 2018

Coal industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 13 AUGUST 2018

Application for approval of the FES Coal Pty Ltd Greenfield Agreement 2018.

[1] An application has been made for approval of a greenfields agreement known as the FES Coal Pty Ltd Greenfield Agreement 2018 (the Agreement). The application was made by FES Coal Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 August 2018. The nominal expiry date of the Agreement is 13 August 2022.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

FES Coal Pty Ltd applied for approval of the FES Coal Pty Ltd Greenfield Agreement 2018. The Fair Work Commission was asked to approve the agreement under section 235 of the Fair Work Act 2009. The application was made by FES Coal Pty Ltd, and the Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union opposed the application. The nature of the dispute was whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the court were whether the agreement provided for terms and conditions of employment that were no worse off and better off than the relevant award or safety net award. The court had to determine whether the agreement was procedurally and substantively fair. The court also had to consider whether the agreement provided for appropriate mechanisms for resolving disputes and provided for adequate protections for employees.

The court found that the agreement was procedurally fair as it was made in good faith and involved genuine bargaining. The court also found that the agreement was substantively fair as it provided for terms and conditions of employment that were no worse off and better off than the relevant award or safety net award. The court found that the agreement provided for appropriate mechanisms for resolving disputes and provided for adequate protections for employees. The court approved the FES Coal Pty Ltd Greenfield Agreement 2018.

FES Coal 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