Illawarra Coal Holdings Pty Ltd T/A South32

[2023] FWCA 1194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Illawarra Coal Holdings Pty Ltd T/A South32

(AG2023/1041)

DENDROBIUM MINE MINING SUPERVISORS (DEPUTIES) ENTERPRISE AGREEMENT 2022

Mining industry
COMMISSIONER MIRABELLA	MELBOURNE, 27 APRIL 2023

Application for approval of the Dendrobium Mine Mining Supervisors (Deputies) Enterprise Agreement 2022.

Illawarra Coal Holdings Pty Ltd T/A South32 has made an application for approval of an enterprise agreement known as the Dendrobium Mine Mining Supervisors (Deputies) Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Association of Professional Engineers, Scientists and Managers, Australia, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 27 April 2023 and, in accordance with s.54, will operate from 4 May 2023. The nominal expiry date of the Agreement is 3 July 2026.

COMMISSIONER

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CaseChat Overview and Summary

Illawarra Coal Holdings Pty Ltd, trading as South32, applied to the Fair Work Commission for approval of the Dendrobium Mine Mining Supervisors (Deputies) Enterprise Agreement 2022. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the Commission needed to assess if the agreement was genuinely negotiated, contained minimum terms and conditions of employment, and satisfied the other criteria set out in the Act. The decision hinged on whether the agreement complied with these legal standards and whether it was fairly and genuinely negotiated between the parties.

The central issue before the Commission was whether the proposed enterprise agreement was genuinely negotiated and contained the requisite minimum terms and conditions as mandated by the Fair Work Act. The Commission had to examine the negotiation process and whether it was conducted in good faith. Additionally, the agreement had to include all the minimum terms and conditions specified by the Act, and the Commission was required to ensure that the agreement was not detrimental to employees.

In its decision, the Commission found that the Dendrobium Mine Mining Supervisors (Deputies) Enterprise Agreement 2022 was genuinely negotiated and included all the minimum terms and conditions required by law. The Commission was satisfied that the negotiation process was conducted in good faith and that the agreement was fair and reasonable. As a result, the Commission approved the agreement, finding it to be compliant with the statutory requirements under the Fair Work Act.

The Fair Work Commission approved the Dendrobium Mine Mining Supervisors (Deputies) Enterprise Agreement 2022, confirming its compliance with the Fair Work Act. This decision sets a precedent for similar agreements in the industry and ensures that the rights and obligations of mining supervisors are adequately protected under the approved enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established