Maules Creek Coal Pty Limited
[2023] FWCA 2412
•4 AUGUST 2023
| [2023] FWCA 2412 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Maules Creek Coal Pty Limited
(AG2023/2118)
MAULES CREEK MINE ENTERPRISE AGREEMENT 2023
| Mining industry | |
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 4 AUGUST 2023 |
Application for approval of the Maules Creek Mine Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Maules Creek Mine Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Maules Creek Coal Pty Limited. The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Agreement provides for production employees to be employed on a casual basis, which is not permitted under the Black Coal Mining Industry Award. This is a relevant consideration in the assessment of the Better Off Overall Test. The Applicant submitted that the appropriate comparison for casual production employees is that of full-time or part-time employees under the Award, and provided an analysis to demonstrate that, based on such a comparison, casual production employees are better off overall compared to the Award. I consider that this is an appropriate approach to the application of the BOOT, and I am satisfied that such employees are better off overall, given the beneficial conditions under the Agreement including significantly higher rates of pay for casual employees, access to a bonus scheme, tool allowance of $50 per week for tradespeople, a trade allowance for some classifications of $7,500 per year, an additional public holiday and other conditions. In reaching this conclusion, I have also given primary consideration to the common view of the Applicant and the CFMMEU that the Agreement passes the BOOT, as I am required to do under s.193A of the Act.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation. The CFMMEU supports approval of the Agreement.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 August 2023. The nominal expiry date of the Agreement is 15 February 2027.
DEPUTY PRESIDENT
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Annexure A
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