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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Moolarben Coal Operations Pty Ltd [2021] FWCA 6821
Case: [2021] FWCA 6821
Decision Date: 25 NOVEMBER 2021

CaseChat Overview and Summary

In Moolarben Coal Operations Pty Ltd, the Fair Work Commission was tasked with deciding whether to approve an enterprise agreement for the Moolarben Underground Mine. The dispute arose as the Fair Work Commission needed to determine if the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The case involved Moolarben Coal Operations Pty Ltd, the company, and the union representing the employees, who had reached an agreement on the terms and conditions of employment.

The legal issues before the Commission were whether the agreement contained all the prescribed terms, whether it had been made in good faith, and whether it complied with the requirements of the Fair Work Act. The Commission also had to consider whether the agreement appropriately balanced the interests of the employees and the employer. The key question was whether the agreement met the statutory requirements for approval and whether it was fair and reasonable in all circumstances.

The Commission examined the agreement clause by clause, ensuring that it contained all necessary terms and was made in good faith. It found that the agreement was comprehensive and included provisions for wages, hours of work, leave, and other employment conditions. The Commission was satisfied that the agreement had been negotiated in good faith and that it appropriately balanced the interests of both parties. After reviewing the evidence and submissions, the Commission concluded that the agreement met all the statutory requirements and was fair and reasonable.

Accordingly, the Commission approved the Moolarben Underground Mine Enterprise Agreement 2021. The final orders of the Commission were that the agreement be approved and registered, and that it would come into effect on the date of the decision. The agreement would then apply to the employees covered by it, governing their terms and conditions of employment.

Orders