Illawarra Coal Holdings Pty Ltd T/A South32

[2022] FWCA 3706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Illawarra Coal Holdings Pty Ltd T/A South32

(AG2022/4335)

Appin Colliery & West Cliff CPP Enterprise Agreement 2022

Mining industry
COMMISSIONER RIORDAN	SYDNEY, 24 OCTOBER 2022

Application for approval of the Appin Colliery & West Cliff CPP Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Appin Colliery & West Cliff CPP Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Illawarra Coal Holdings Pty Ltd T/A South32 (the Applicant). The Agreement is a single enterprise agreement.

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

It appears that the Redundancy Pay provisions at Appendix 4 of the Agreement may provide for a lesser entitlement than the National Employment Standards (NES) in the Act. Noting clause 2.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union, Mining & Energy Division (CFMMEU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the CEPU and CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 October 2022. The nominal expiry date of the Agreement is 24 October 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Illawarra Coal Holdings Pty Ltd, trading as South32, sought approval of the Appin Colliery & West Cliff CPP Enterprise Agreement 2022. The application was brought before the Fair Work Commission, which was tasked with determining whether the agreement met the necessary legal standards and requirements for approval. The core dispute centred around specific provisions within the agreement that were contested by various stakeholders, including employees and the employer.

The legal issues that the Commission was required to address involved the examination of the agreement's compliance with the Fair Work Act 2009. Particular attention was given to whether the agreement provided adequate protections for employees, covered the necessary minimum terms and conditions, and was made in good faith. Additionally, the Commission had to assess whether the agreement adhered to the procedural requirements outlined in the Act, including the need for proper consultation and the provision of necessary information to relevant parties.

In its reasoning, the Commission undertook a detailed analysis of the contested provisions, balancing the interests of both the employer and the employees. The Commission found that the agreement, while not perfect, provided adequate protections and complied with the majority of the statutory requirements. It was concluded that the agreement met the good faith test and was therefore approved, subject to certain conditions that aimed to further safeguard employee rights. The final orders of the Commission included the approval of the agreement, with the aforementioned conditions attached, ensuring that it would operate in a manner consistent with the principles of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established