DECISION

Fair Work Act 2009
s.185—Enterprise agreement

HSE Mining Pty Ltd T/A Kalari HSE
(AG2017/4157)

KALARI HSE (PEAK DOWNS) ENTERPRISE AGREEMENT 2017

Coal industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 5 FEBRUARY 2018

Application for approval of the Kalari HSE (Peak Downs) Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Kalari HSE (Peak Downs) Enterprise Agreement 2017(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by HSE Mining Pty Ltd T/A Kalari HSE. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] 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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

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

[5] The Agreement was approved on 5 February 2018 and, in accordance with s.54, will operate from 12 February 2018. The nominal expiry date of the Agreement is 5 February 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, HSE Mining Pty Ltd trading as Kalari HSE, sought approval of the Kalari HSE (Peak Downs) Enterprise Agreement 2017 under the Fair Work Act 2009. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) who raised concerns about the agreement’s provisions and its implications for employees. The matter was heard in the Fair Work Commission, presided over by Deputy President R L Robinson.

The central legal issues before the commission were whether the agreement met the statutory requirements under the Fair Work Act, particularly whether it provided for fair and reasonable terms and conditions of employment. The opposition argued that certain provisions of the agreement did not adequately protect employee rights and that it did not provide for fair and reasonable terms. The applicants contended that the agreement was fair and reasonable and met all statutory requirements.

The commission found that, while the agreement contained some provisions that could be improved, it did not contain any terms that were unfair or unreasonable. The commission also considered the evidence presented by both parties regarding the bargaining process and the context in which the agreement was made. Ultimately, the commission was satisfied that the agreement was made in good faith and that it provided for fair and reasonable terms and conditions of employment. Therefore, the application for approval was granted.

The commission made an order approving the Kalari HSE (Peak Downs) Enterprise Agreement 2017, subject to the conditions set out in the decision. The agreement is now registered and will apply to the employees covered by it.

HSE Mining Pty Ltd T/A Kalari HSE

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established