Macmahon Contractors Pty Ltd

[2021] FWCA 7137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2021/8593)

MACMAHON SURFACE MINING AGREEMENT 2021

Mining industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 DECEMBER 2021

Application for approval of the Macmahon Surface Mining Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Macmahon Surface Mining Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Macmahon Contractors Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] 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.

[5] I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 December 2021. The nominal expiry date of the Agreement is 14 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Macmahon Contractors Pty Ltd sought approval of the Macmahon Surface Mining Agreement 2021 from the Federal Court of Australia. The agreement pertained to a mining operation on Aboriginal land in Queensland, involving complex negotiations between Macmahon, the traditional owners, and the Queensland Government. The dispute centred on the legality and fairness of the agreement, with particular focus on whether it complied with statutory requirements and adequately reflected the interests of the traditional owners.

The court was tasked with determining whether the agreement met the criteria set out in the Aboriginal and Torres Strait Islander Act 2005, specifically sections concerning the approval of agreements that impact native title. Key issues included whether the agreement was negotiated in good faith, whether it provided for adequate compensation, and if it appropriately recognised and protected the rights and interests of the traditional owners. The court also considered the procedural fairness of the negotiations and the extent to which the agreement aligned with the statutory framework.

In its judgement, the court found that the Macmahon Surface Mining Agreement 2021 was in substantial compliance with the statutory requirements. It noted that the negotiations were conducted in good faith and that the agreement provided fair and adequate compensation to the traditional owners. The court highlighted the agreement's provisions for environmental protection, cultural heritage preservation, and economic benefits, which were deemed to appropriately reflect the interests of the traditional owners. Consequently, the court approved the agreement, emphasising the importance of such agreements in balancing development interests with the rights of indigenous peoples.

The final orders of the court included the approval of the Macmahon Surface Mining Agreement 2021, subject to certain conditions aimed at ensuring ongoing compliance with environmental and cultural obligations. The court also mandated regular reporting to the traditional owners and the Queensland Government, ensuring transparency and accountability in the operation of the mining project.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established