Jellinbah Mining Pty Ltd

[2024] FWCA 400

The attached document replaces the document previously issued with the above code on 30 January 2024.

A new paragraph [5] has been inserted into the Decision to clarify the Commissioner’s consideration and subsequent paragraphs have been renumbered accordingly.

Associate to Commissioner Matheson

Dated 30 January 2024.

[2024] FWCA 400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Jellinbah Mining Pty Ltd

(AG2023/5311)

JELLINBAH MINING ENTERPRISE AGREEMENT 2023

Coal industry
COMMISSIONER MATHESON	SYDNEY, 30 JANUARY 2024

Application for approval of the Jellinbah Mining Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Jellinbah Mining Enterprise Agreement 2023 (Agreement). The application was made by Jellinbah Mining Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A indicates that the notification time for the Agreement was 7 November 2022. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to 6 June 2023.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2024. The nominal expiry date of the Agreement is 30 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Jellinbah Mining Pty Ltd was before the Fair Work Commission to seek approval of the Jellinbah Mining Enterprise Agreement 2023. The agreement sought to establish terms and conditions of employment for workers within the company. The dispute centred around whether the agreement adequately met the requirements set forth under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the procedural and substantive requirements for approval.

The key legal issues revolved around whether the agreement had been made in accordance with the mandatory provisions of the Fair Work Act, particularly regarding the process of employee consultation and the content of the agreement itself. The Commission needed to ensure that the agreement was not only procedurally sound but also fair and reasonable in its terms. Additionally, the court had to consider whether the agreement provided for a safety net of minimum entitlements and whether it complied with the good faith bargaining requirement.

In examining the evidence presented, the Fair Work Commission found that the agreement had been negotiated in good faith and that the process of consultation had been thorough and compliant with statutory requirements. The Commission was satisfied that the agreement provided for a safety net of minimum entitlements and that the terms were fair and reasonable. Given these findings, the Commission approved the Jellinbah Mining Enterprise Agreement 2023, confirming its compliance with the legislative framework. The approval was subject to the terms and conditions outlined in the agreement, ensuring that all workers would be covered by the new enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established