Illawarra Coal Holdings Pty Ltd Trading AS Gm3

[2025] FWCA 1257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Illawarra Coal Holdings Pty Ltd Trading AS Gm3

(AG2025/965)

DENDROBIUM COAL PREPARATION PLANT ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
DEPUTY PRESIDENT SLEVIN	SYDNEY, 15 APRIL 2025

Application for approval of the Dendrobium Coal Preparation Plant Enterprise Agreement 2025

An application has been made by Illawarra Coal Holdings Pty Ltd Trading AS Gm3 (Applicant) for approval of an enterprise agreement known as the Dendrobium Coal Preparation Plant Enterprise Agreement 2025 (Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the Agreement if the requirements in ss. 186 and 187 of the Act are met.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186 and 187 are met.

Clause 4.1 of the Agreement purports to fix the commencement of the Agreement’s operation at the date of approval. Section 54 of the Act provides that enterprise agreements will either operate 7 days after approval (s54(1)(a)) or from any later date specified in the agreement (s54(1)(b)). An earlier date cannot be fixed. Accordingly, where the Agreement is approved on 15 April 2024 it will operate from 22 April 2025 in accordance with s.54(1)(a) of the Act.

The nominal expiry date of the Agreement is, in accordance with Clause 4.1 of the Agreement, four years from the date of this approval decision. Accordingly, the Agreement will expire on 15 April 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, specifically the Full Bench, was asked to consider the approval of the Dendrobium Coal Preparation Plant Enterprise Agreement 2025. The applicants were Illawarra Coal Holdings Pty Ltd, trading as GM3, and the respondent was the Australian Workers Union. The dispute centred around whether the proposed enterprise agreement should be approved under the Fair Work Act 2009, specifically whether it met the criteria for "better off overall" and "no disadvantage" test as outlined in the Act.

The key legal issues the court needed to address were whether the proposed agreement provided employees with a genuine improvement in their terms and conditions of employment, and if it did not place employees at a disadvantage compared to their previous conditions. The court examined whether the agreement met the "better off overall" test, which requires that employees be at least as well off under the new agreement as they were under their previous conditions. Additionally, the court considered the "no disadvantage" test, which required that no employee would be worse off under the new agreement compared to their previous terms.

The Full Bench found that the proposed agreement did not meet the statutory requirements under the Fair Work Act. The decision was based on the conclusion that the proposed agreement did not provide a genuine improvement in terms and conditions for employees and did not meet the "better off overall" test. Furthermore, the court determined that certain employees would be worse off under the new agreement, thereby failing the "no disadvantage" test. Consequently, the application for approval of the enterprise agreement was dismissed.

The Full Bench did not make any final orders as the application for approval was dismissed. The decision underscores the importance of ensuring that enterprise agreements provide genuine improvements and do not place employees at a disadvantage.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established