MACA Mining Pty Ltd

[2023] FWCA 3041

[2023] FWCA 3041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MACA Mining Pty Ltd

(AG2023/2870)

MACA MINING (SANJIV RIDGE PROJECT) ENTERPRISE AGREEMENT 2023

Mining industry
DEPUTY PRESIDENT EASTON	SYDNEY, 19 SEPTEMBER 2023

Application for approval of the MACA Mining (Sanjiv Ridge Project) Enterprise Agreement 2023

1. MACA Mining Pty Ltd (the Employer) has made an application for the approval of the MACA Mining (Sanjiv Ridge Project) Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement title that appeared on the Notice of Employee Representational Rights (NERR) differed from the title of the proposed agreement, and the proposed coverage contained in the NERR differed from the coverage of the proposed agreement in clause 2.

1. The Employer submitted that the relevant employees nonetheless understood the scope of the proposed agreement, the identity of the employer and their representational rights and that none of these matters were affected by the errors in the NERR. The Employer said the agreement was always intended to cover employees of the Employer (and the Employer only) that worked on the Sanjiv Ridge Project, and that it was those employees who received the NERR as well as subsequent copies of the proposed agreement and voting materials. There was no actual or potential impact on employees who will be covered by the proposed agreement as a result of the name change, and no impact on the capacity of employees to participate in the bargaining process (or indeed to advance an alternative name and/or coverage during that process). I am satisfied that the Agreement has been genuinely agreed, within the meaning of s.186(2)(a), despite ‘minor procedural or technical errors’.

1. The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

1. Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

1. Pursuant to s.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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2023. The nominal expiry date of the Agreement is 19 September 2027.

DEPUTY PRESIDENT

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Annexure A