Moolarben Coal Operations Pty Ltd

[2021] FWCA 6821

[2021] FWCA 6821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Moolarben Coal Operations Pty Ltd
(AG2021/8242)

MOOLARBEN COAL OPERATIONS PTY LIMITED - MOOLARBEN UNDERGROUND MINE ENTERPRISE AGREEMENT 2021

Coal industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 25 NOVEMBER 2021

Application for approval of the Moolarben Coal Operations Pty Limited - Moolarben Underground Mine Enterprise Agreement 2021

Introduction and background

[1] Moolarben Coal Operations Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Moolarben Coal Operations Pty Limited - Moolarben Underground Mine Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is a bargaining representative for employees who will be covered by the Agreement. The CFMMEU’s Form F18 was lodged in the Commission with this application, declaring that it supported approval of the Agreement and seeks to be covered by the Agreement.

[3] This application was allocated to my chambers on 15 November 2021 and after considering the application, on 17 November 2021 my chambers sent correspondence to the Employer and the CFMMEU outlining a number of preliminary concerns, including that the Agreement allows for the coverage and engagement of casual employees in sectors where only permanent employment is contemplated under Schedule A of the Black Coal Mining Industry Award 2010 (BCMI Award).

[4] In relation to the engagement of casual employees, the correspondence requested that the Employer and the CFMMEU provide submissions as to whether casual employees under the Agreement are to be compared to full time and part time employees under the BCMI Award for the purposes of the better off overall test (BOOT), or upon some other basis, and whether the Commission can be satisfied that casual employees will be better off overall under the Agreement.

[5] The Employer provided submissions regarding casual employees, among other things, on 23 November 2021. The CFMMEU filed submissions regarding casual employees on 24 November 2021.

[6] On the basis of the material contained in the application, the accompanying statutory declaration, the undertakings provided by the Employer and the additional information provided by the Employer and the CFMMEU, I am satisfied that the Agreement is capable of approval. These are the reasons for my conclusion.

Better Off Overall Test (BOOT)

[7] In relation to casual employees and the BOOT, the Employer and the CFMMEU submit that the BOOT test for prospective casual employees requires a comparison between casual employment under the Agreement and part-time or full-time employment under the BCMI Award. 1 The Employer and the CFMMEU refer to and largely rely upon two decisions of the Full Bench of the Commission being Construction, Forestry, Mining and Energy Union v SESLS Industrial Pty Ltd 2 and Construction, Forestry, Maritime, Mining and Energy Union v SRSW Pty Ltd t/a Stellar Recruitment.3 I will adopt the same approach in assessing the BOOT as was adopted by the Full Bench in those matters.

[8] The Agreement provides for a 25% casual loading to be added to the hourly rates of pay for casual employees under the Agreement. 4 The CFMMEU submits it cannot simply be accepted that the provision of a 25% causal loading is sufficient to outweigh the various detriments associated with casual employment.5 Rather, it submits that an evaluative exercise must be undertaken.6 The CFMMEU points to the higher rates of pay and the provision for payment of bonuses under the Agreement as demonstrating that the Agreement passes the BOOT.7

[9] The Employer also points to the higher rates of pay under the Agreement, together with the $70.00 per week tool /trade allowance provided to tradespersons in clause 2.2.2(c) of the Agreement. 8

[10] The hourly rates of pay under the Agreement are between 8.53% and 26.92% above the BCMI Award rates of pay. The higher hourly rates in the Agreement are applied to monetary entitlements under the Agreement such as overtime, penalties, loadings, leave entitlements and the casual loading. I consider the higher hourly rate of pay under the Agreement compared to the BCMI Award weighing significantly in favour of the Agreement passing the BOOT for prospective casual employees.

[11] In relation to the payment of bonuses, the Agreement makes provision for a performance based bonus 9 and a retention bonus10 which are not provided for in the BCMI Award.11 This provides a further benefit to casual employees to be covered by the Agreement when compared with the BCMI Award.

[12] Having regard to all the circumstances and after considering the materials filed by the Employer and the CFMMEU, I am satisfied that that each prospective casual employee of the Employer would be better off overall if the Agreement applied to them than if the BCMI Award applied to them. I have reached this evaluative assessment because the aspects of the Agreement which are more beneficial than the BCMI Award, considered together with the Undertakings, outweigh the aspects of the Agreement which are less beneficial than the BCMI Award. Accordingly, I am satisfied that the Agreement passes the BOOT and is therefore capable of approval.

Undertakings and Terms

[13] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The CFMMEU does not object to the proposed undertakings. 12 Accordingly, the undertakings are taken to be a term of the Agreement.

[14] 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.

[15] I observe that clauses 2.8.1(f) and 2.8.1 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). Further, I note that the Agreement does not contain a casual conversion clause. However, noting the undertaking provided which incorporates a NES precedence clause into 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.

Satisfaction of other requirements

[16] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, and the additional information provided by the Employer and the CFMMEU, 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.

[17] The CFMMEU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[18] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 2 December 2021. The nominal expiry date of the Agreement is 1 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE514005  PR736124>

Annexure A

 1   Applicant’s submissions at [6]; CFMMEU’s submissions at [10]

 2   [2017] FWCFB 3659

 3   [2020] FWCFB 2052

 4   Moolarben Coal Operations Pty Limited - Moolarben Underground Mine Enterprise Agreement 2021 (Agreement)clause 4.2.5

 5   CFMMEU’s submissions at [6]

 6   CFMMEU’s submissions at [8]

 7   CFMMEU’s submissions at [16]-[19]

 8   Applicant’s submissions at [9]-[10]

 9   Agreementclause 2.2.1

 10   Agreementclause 2.2.2

 11   CFMMEU’s submissions at [18]

 12   CFMMEU’s submissions at [24]