Kestrel Coal t/a Kestrel Coal Pty Ltd Summary

[2024] FWCA 3471

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Kestrel Coal t/a Kestrel Coal Pty Ltd

(AG2024/3368)

KESTREL COAL ERZ CONTROLLER ENTERPRISE AGREEMENT 2024

Coal industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 3 OCTOBER 2024

Application for approval of the Kestrel Coal ERZ Controller Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Kestrel Coal ERZ Controller Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kestrel Coal Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met.

I note that Clause 6 of the Agreement provides that nothing in the Agreement is intended to displace the Applicant’s obligation to meet the minimum requirements under the National Employment Standards (NES). This clause addresses any potential shortcomings in clause 13.4, Compassionate Leave, of the Agreement insofar as the clause does not provide for the full entitlement to compassionate leave as set out in s.105 of the Act.

The Association of Professional Engineers Scientists & Managers Australia (APESMA) and the Mining and Engineering Union (MEU) each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the APESMA and the MEU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 10 October 2028 (4 years from the date the Agreement begins to operate).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kestrel Coal t/a Kestrel Coal Pty Ltd applied to the Fair Work Commission for the approval of the Kestrel Coal Enterprise Resource Zone Controller Enterprise Agreement 2024. The Fair Work Commission was required to determine whether the agreement met the statutory requirements under the Fair Work Act 2009 for approval and registration. The applicant, Kestrel Coal, sought to have the agreement approved to ensure its employees were covered by a fair and reasonable enterprise agreement.

The legal issues before the Commission included whether the agreement was made in accordance with the procedural requirements of the Act, whether it was genuinely an enterprise agreement, and whether it contained the mandatory terms prescribed by the Act. Furthermore, the Commission considered whether the agreement provided for fair and reasonable terms and conditions of employment, and if it complied with the good faith bargaining obligations under the Act.

The Fair Work Commission found that the agreement was made in accordance with the procedural requirements and was genuinely an enterprise agreement. The Commission also determined that the agreement contained the mandatory terms required by the Act and provided for fair and reasonable terms and conditions of employment. The Commission was satisfied that the agreement was the product of good faith bargaining and did not contain any provisions that would be contrary to public policy.

The Fair Work Commission approved the Kestrel Coal Enterprise Resource Zone Controller Enterprise Agreement 2024, determining that it met all the necessary statutory requirements. The agreement was registered, and the employees of Kestrel Coal were now covered by the approved enterprise agreement.

Kestrel Coal t/a Kestrel Coal Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established