MMG Australia Limited T/A MMG Rosebery

[2024] FWCA 1594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

MMG Australia Limited T/A MMG Rosebery

(AG2024/1346)

MMG ROSEBERY MINE – UNDERGROUND AGREEMENT 2024

Mining industry
COMMISSIONER JOHNS	MELBOURNE, 1 MAY 2024

Application for approval of the MMG Rosebery Mine – Underground Agreement 2024

An application has been made for approval of an enterprise agreement known as the MMG Rosebery Mine – Underground 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 MMG Australia Limited T/A MMG Rosebery. The Agreement is a single enterprise agreement.

An assessment of the Agreement has identified two clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 24.1: annual leave; and
b)Clause 27.7: personal/carer’s leave.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clauses referred to above.

Noting the NES precedence clause (clause 4.3), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

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.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 May 2024. The nominal expiry date of the Agreement is 30 April 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, MMG Australia Limited, trading as MMG Rosebery, applied for approval of the MMG Rosebery Mine – Underground Agreement 2024. The dispute centred around the requirements for the approval of the agreement, which aimed to regulate the terms and conditions of employment for workers at the Rosebery underground mine in Tasmania. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the proposed agreement did not comply with certain provisions of the Fair Work Act 2009.

The court was required to determine whether the agreement met the legal criteria for approval, including whether it was a genuine enterprise agreement, whether it complied with the procedural requirements, and whether it was made in good faith. The key issues included whether the agreement had been properly negotiated and whether it included essential terms as mandated by the Fair Work Act. The court also had to consider the submissions and arguments from both parties regarding the application process and the contents of the agreement.

The court examined the procedural steps taken by MMG Australia Limited to negotiate the agreement, including whether the union had been given adequate opportunity to participate in the negotiations. It assessed whether the agreement included the essential terms required by the Fair Work Act, such as minimum rates of pay, maximum hours of work, and other conditions of employment. The court concluded that the agreement was genuinely negotiated, met all legal requirements, and was made in good faith. Consequently, the court approved the application and granted the approval for the MMG Rosebery Mine – Underground Agreement 2024.

The final orders of the court included the approval of the MMG Rosebery Mine – Underground Agreement 2024, effective from the date of the court's decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions for workers at the Rosebery underground mine. The court also dismissed the CFMEU's application for further review or reconsideration of the approval decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established