Hail Creek Coal Pty Ltd

[2020] FWCA 6201

[2020] FWCA 6201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hail Creek Coal Pty Ltd
(AG2020/3164)

HAIL CREEK MINE ENTERPRISE AGREEMENT 2020

Mining industry
COMMISSIONER HUNT	BRISBANE, 18 NOVEMBER 2020

Application for approval of the Hail Creek Mine Enterprise Agreement 2020.

[1] Hail Creek Coal Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Hail Creek Mine Enterprise Agreement 2020 (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.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union the (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), and the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No responses were received from the employee bargaining representatives.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I also wrote to the Employer noting the Notice of Employee Representational Rights (NERR) indicated that the name of the enterprise agreement the Employer was bargaining with its employees was the Hail Creek Agreement 2017. The Employer provided a response that the name of the Agreement was a matter that changed as bargaining progressed, to reflect that it was ultimately made in 2020. The Employer submitted that the Commission may find that the name of an enterprise agreement may ultimately differ to what is printed in the NERR, and does not result in a material change to the form and content required in an NERR. 1

[5] I am satisfied the difference in names is capable of being categorised as a “minor technical error” as contemplated by s.188(2) of the Act and further I am satisfied that the employees were not likely to have been disadvantaged by it. I am satisfied that the Agreement has been genuinely agreed.

[6] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[7] The CFMMEU, the AMWU and the CEPU being bargaining representatives for the Agreement have 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 the CFMMEU, the AMWU and the CEPU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 November 2020. The nominal expiry date of the Agreement is four years after the date of approval.

COMMISSIONER

Attachment A

 1   see Falcon Mining Pty Ltd [2016] FWC 5315 at [133]; DP World Brisbane [2016] FWC 385 at [8].

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