Maules Creek Coal Pty Limited

[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

Printed by authority of the Commonwealth Government Printer

Annexure A

The application before the Fair Work Commission was brought by Maules Creek Coal Pty Limited for the approval of the Maules Creek Mine Enterprise Agreement 2023. The application arose from a dispute between the company and its employees, who are represented by the Construction, Forestry, Maritime, Mining and Energy Union. The crux of the disagreement involved several provisions of the proposed agreement, which the union contested on the grounds that they were not sufficiently fair and reasonable to warrant approval by the Commission.

The legal issues central to the application included whether the provisions of the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement provided for appropriate terms and conditions, including wages, hours of work, and other employment-related matters, and whether it complied with the requirements for procedural fairness. The union argued that certain provisions did not adequately protect the employees' interests, particularly in relation to shift patterns and the classification of employees.

In assessing the application, the Fair Work Commission examined the fairness of the agreement by reviewing the negotiation process, the content of the agreement, and the evidence presented by both parties. The Commission found that, while some provisions did require minor amendments to ensure greater fairness, the overall agreement was satisfactory in terms of its provisions and the manner in which it was negotiated. Consequently, the Commission approved the Maules Creek Mine Enterprise Agreement 2023 with some modifications to address the union's concerns. These modifications included adjustments to shift patterns and clarifications in employee classification to better protect workers' rights and interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established