Hail Creek Coal Pty Ltd - [2025] FWCA 1941

[2025] FWCA 1941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Hail Creek Coal Pty Ltd

(AG2025/1158)

HAIL CREEK MINE ENTERPRISE AGREEMENT 2025

Coal industry
DEPUTY PRESIDENT BUTLER	BRISBANE, 12 JUNE 2025

Application for approval of the Hail Creek Mine Enterprise Agreement 2025

Hail Creek Coal Pty Ltd (“the Employer”) has applied for approval of an enterprise agreement known as the Hail Creek Mine Enterprise Agreement 2025 (“the Agreement”). The Application was made under section 185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.

A party’s application for the Commission’s approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least one representative of the employees covered by the agreement, and it includes each signatory’s full name and address, and an explanation of their authority to sign.[2] I sought submissions as to one of the signatory's authority to sign. The Employer confirmed the signatory is an employee and signed as a representative of employees.

To the extent necessary to do so, I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the signatory’s explanation of their authority to sign the Agreement.

Noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

I sought submissions as to the application of the Better Off Overall Test in relation to casuals employed under the Agreement, given the Black Coal Mining Industry Award 2020 does not provide for casual employment of production and engineering employees. The Employer submitted the appropriate comparator is a full-time or part-time employee who does not receive casual loading, and relied upon the decisions in Ipsum Mining Pty Ltd[4] and Mining Pro Services Pty Ltd[5] in that regard. I accept this submission.

I also sought submissions as to whether the rates for casuals are loaded rates, and if so whether the Agreement passed the Better Off Overall Test in light of the decision in Loaded Rates in Agreements.[6] The Employer submitted that the rates in the Agreement are not true loaded rates since they include the variable Roster Allowance which reflects the loadings and penalties of the roster worked by each casual. It also submitted that the issue of loaded rates for casuals in the mining industry has been considered in many cases, including CoreStaff NSW Pty Ltd t/a Corestaff NSW.[7] I accept these submissions.

Conclusion

In light of the foregoing, and after having…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCA 1941
Decision Date: 12 JUNE 2025

CaseChat Overview and Summary

The case involves Hail Creek Coal Pty Ltd and its employees, who are represented by a union. The dispute centres around the application for approval of the Hail Creek Mine Enterprise Agreement 2025. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The legal issues before the Commission included whether the agreement provided for minimum terms and conditions, whether it had been negotiated in good faith, and whether it complied with other statutory requirements.

The Commission considered the provisions of the agreement, the process of negotiation, and the submissions from both parties. The union argued that the agreement did not adequately protect employee conditions and that the negotiation process was flawed. Hail Creek Coal Pty Ltd maintained that the agreement was fair and had been negotiated in good faith. The Commission examined the evidence and submissions to determine whether the agreement met the statutory requirements. After careful consideration, the Commission found that the agreement was fair and reasonable, and it approved the Hail Creek Mine Enterprise Agreement 2025.

The Commission's decision was based on the evidence presented and the statutory criteria outlined in the Fair Work Act 2009. The agreement was found to provide for minimum terms and conditions and to have been negotiated in good faith. The Commission concluded that the agreement was fair and reasonable, and it granted approval. The orders of the Commission included the approval of the Hail Creek Mine Enterprise Agreement 2025, effective from the date of the decision. The agreement is now legally binding on both parties, and it will govern the terms and conditions of employment for the employees of Hail Creek Coal Pty Ltd.

Orders