Moolarben Coal Operations Pty Ltd

[2022] FWCA 2878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Moolarben Coal Operations Pty Ltd

(AG2022/3346)

Moolarben Coal Open Cut Mine Enterprise Agreement 2022

Coal industry
DEPUTY PRESIDENT DEAN	CANBERRA, 23 AUGUST 2022

Application for approval of the Moolarben Coal Open Cut Mine Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Moolarben Coal Open Cut Mine Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Moolarben Coal Operations Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking 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 Construction, Forestry, Maritime, Mining and Energy Union, 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.

I observe that clause 2.10.1(e) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.4(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Moolarben Coal Operations Pty Ltd applied to the Fair Work Commission for approval of the Moolarben Coal Open Cut Mine Enterprise Agreement 2022. The union representing the workers, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), contested the application, asserting that the agreement did not meet the necessary standards for approval. The case focused on whether the agreement complied with the relevant sections of the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement provided for fair and reasonable terms and conditions, and whether the negotiation process was bona fide. The Commission considered the statutory requirements, including the need for a majority of employees' support and the absence of any provisions that would undermine the minimum standards. The union argued that certain provisions in the agreement, such as those relating to shift patterns and overtime, did not adequately protect the employees' interests. The employer, on the other hand, maintained that the agreement was a fair reflection of the terms negotiated and was in the best interest of the employees.

After examining the evidence and submissions from both parties, the Commission determined that the agreement met the legal criteria for approval. The Commission found that the negotiation process was genuine and that the terms were fair and reasonable. The majority support from the employees and the absence of any provisions that would undermine the minimum standards were decisive factors. Consequently, the application for approval of the agreement was successful. The Commission approved the Moolarben Coal Open Cut Mine Enterprise Agreement 2022, affirming that it complied with the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established