Fitzroy Coal Management Pty Ltd

[2022] FWCA 1405

[2022] FWCA 1405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fitzroy Coal Management Pty Ltd

(AG2022/707)

Fitzroy Mining Operations Enterprise Agreement 2022

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 26 APRIL 2022

Application for approval of the Fitzroy Mining Operations Enterprise Agreement 2022

1. Fitzroy Coal Management Pty Ltd (the Applicant/ Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Fitzroy Mining Operations Enterprise Agreement 2022 (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.

1. I observe that the following clauses of the Agreement may be inconsistent with the National Employment Standards (NES):

• Clause 10 – Public Holidays;
• Clause 14(a) – Compassionate Leave;
• Clause 21(a) – Termination of Employment;
• Clause 21(e) – Termination of Employment; and
• Clause 23 – Abandonment.

1. However, I note that Clause 3 of the Agreement provides where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provisions 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.

1. I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations 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.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s.186(3) and (3A), and on the basis of the information contained in the Form F17’s, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.

1. The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

1. The Agreement is approved in accordance with s.54 of the Act and will operate from 3 May 2022. The nominal expiry date of the Agreement is 3 May 2025.

DEPUTY PRESIDENT

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