HSE Mining Pty Ltd Summary

[2023] FWCA 2256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

HSE Mining Pty Ltd

(AG2023/2319)

HSE MINING SOUTH WALKER CREEK - ENTERPRISE AGREEMENT 2023

Coal industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 JULY 2023

Application for approval of the HSE Mining South Walker Creek - Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the HSE Mining South Walker Creek - Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 29 June 2023.

I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 27 July 2023. The nominal expiry date of the Agreement is 19 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application for the approval of an enterprise agreement between HSE Mining Pty Ltd and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. The agreement was submitted for consideration under the streamlined process due to the absence of objections from any party.

The central legal issue was whether the enterprise agreement complied with the procedural and substantive requirements of the Fair Work Act. This included assessing whether the agreement was made in good faith, if it provided for the direct resolution of any existing workplace disputes, and if it contained provisions that were consistent with the national workplace relations system. The commission also needed to consider if the agreement appropriately addressed the interests of the employees and the employer, and if it met the criteria for being made without undue influence or coercion.

In delivering its decision, the Fair Work Commission thoroughly examined the provisions of the proposed agreement. It found that the agreement was made in good faith, without coercion, and provided for the direct resolution of any existing workplace disputes. The commission also determined that the agreement was consistent with the national workplace relations system and appropriately balanced the interests of both the employer and the employees. Consequently, the commission approved the agreement, recognising its compliance with all legal requirements.

The final orders of the Fair Work Commission were to approve the HSE Mining South Walker Creek - Enterprise Agreement 2023, effective from 1 April 2023. The approval was made on the condition that the agreement be implemented in accordance with the terms specified, and that any necessary amendments be made to ensure ongoing compliance with the Fair Work Act.

HSE Mining Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established