DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kestrel Coal Pty Ltd
(AG2021/22)

KESTREL COAL ERZ CONTROLLER ENTERPRISE AGREEMENT 2021

Coal industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 12 FEBRUARY 2021

Application for approval of the Kestrel Coal ERZ Controller Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Kestrel Coal ERZ Controller Enterprise Agreement 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. 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.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[5] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Association of Professional Engineers, Scientists and Managers, Australia and the Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives for the Agreement, have each given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisations.

[8] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 19 February 2021. The nominal expiry date of the Agreement is 18 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kestrel Coal Pty Ltd applied to the Fair Work Commission for approval of the Kestrel Coal Enterprise Resource Zone (ERZ) Controller Enterprise Agreement 2021. The matter was heard by Deputy President J B McInerney. The applicants sought approval of the agreement as a simple, low-risk modern award. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which submitted that the agreement contained terms that were not consistent with the provisions of the Fair Work Act 2009 (Cth). The legal issues before the court included whether the agreement complied with the requirements of the Act and whether it contained terms that were not consistent with the principles of the Fair Work system.

The court held that the agreement complied with the requirements of the Act. The Deputy President found that the agreement was a low-risk modern award and that the terms of the agreement were not inconsistent with the principles of the Fair Work system. The Deputy President noted that the agreement provided for a number of benefits to employees, including a pay rate that was above the award rate and provisions for redundancy and other benefits. The Deputy President also found that the agreement contained terms that were necessary to ensure that the company could operate its business effectively and efficiently. The Deputy President held that the agreement was in the best interests of the employees and approved the agreement.

The court ordered that the Kestrel Coal ERZ Controller Enterprise Agreement 2021 be approved as a low-risk modern award. The Deputy President noted that the agreement would provide a number of benefits to employees, including a pay rate that was above the award rate and provisions for redundancy and other benefits. The Deputy President also noted that the agreement contained terms that were necessary to ensure that the company could operate its business effectively and efficiently. The Deputy President held that the agreement was in the best interests of the employees and approved the agreement.

Kestrel Coal Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established