Fitzroy Coal Management Pty Ltd

[2024] FWCA 895

[2024] FWCA 895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fitzroy Coal Management Pty Ltd

(AG2024/429)

CARBOROUGH DOWNS COAL MINE MECHANICAL AND ELECTRICAL SHIFT SUPERVISORS ENTERPRISE AGREEMENT 2024

Mining industry
COMMISSIONER CIRKOVIC	MELBOURNE, 12 MARCH 2024

Application for approval of the Carborough Downs Coal Mine Mechanical and Electrical Shift Supervisors Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as the Carborough Downs Coal Mine Mechanical and Electrical Shift Supervisors Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fitzroy Coal Management Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Notice of Employee Representational Rights (NERR) was given to employees more than 14 days after the notification time. The Employer provided submissions as to this error on 5 March 2024. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(5)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

1. Accordingly, notwithstanding the matters identified in paragraph [3] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Mining and Energy Union (MEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 12 March 2024 and, in accordance with s 54, will operate from 19 March 2024. The nominal expiry date of the Agreement is 19 March 2027.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318

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