DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Moolarben Coal Operations Pty Ltd
(AG2017/212)

COMMISSIONER SAUNDERS

NEWCASTLE, 10 APRIL 2017

Application for approval of the Moolarben Coal Operations Pty Limited – Moolarben Underground Mine Enterprise Agreement 2017. BOOT satisfied. Agreement approved.

[1] Moolarben Coal Operations Pty Ltd (the Employer) has applied to the Fair Work Commission (Commission) for approval of an enterprise agreement known as the Moolarben Coal Operations Pty Limited – Moolarben Underground Mine Enterprise Agreement 2017 (Enterprise Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] The Enterprise Agreement is a single enterprise agreement and is not a greenfields agreement. It covers employees of the Employer engaged at the Moolarben underground mine (the Underground Mine) “who would otherwise be covered by Schedule A of the Black Coal Mining Industry Award 2010” 1 (Black Coal Award).

[3] Employees engaged in the Moolarben open cut mine are covered by the Moolarben Coal Operations Pty Ltd – Moolarben Open Cut Mine Enterprise Agreement 2015. Employees engaged in the Moolarben coal handling preparation plant are covered by the Moolarben Coal Operations Pty Ltd – Moolarben Coal Handling and Preparation Plant (CHPP) Enterprise Agreement 2015.

[4] The Enterprise Agreement was made with three employees who are covered by it (the Employees). They each voted on 25 January 2017 to approve the Enterprise Agreement. Each of those Employees appointed himself as an employee bargaining representative in connection with the negotiation of the Enterprise Agreement. The Employer intends to employ other employees to work at the Underground Mine once the Enterprise Agreement is approved.

[5] The CFMEU is not a bargaining representative in relation to the Enterprise Agreement. For reasons given on transcript on 22 March 2017, I exercised my discretion pursuant to s.590 of the Act to give the CFMEU an opportunity to be heard in relation to the Employer’s application for approval of the Enterprise Agreement. The CFMEU filed detailed written submissions opposing the application for approval of the Enterprise Agreement and appeared at the hearing held on 3 April 2017.

[6] Each of the Employees gave evidence at the hearing on 3 April 2017, as did Mr Grant Arnold, Human Resources and Health, Safety and Training Manager for the Employer.

Genuinely agreed?

[7] One of the necessary preconditions for approval of the Enterprise Agreement is a requirement that I be satisfied that the Enterprise Agreement has been genuinely agreed to by the employees covered by it. 2

[8] Section 188 of the Act governs when an enterprise agreement has been genuinely agreed to by the employees covered by it.

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3)…

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 [2017] FWCA 2010
Case: [2017] FWCA 2010
Decision Date: 10 APRIL 2017

CaseChat Overview and Summary

Moolarben Coal Operations Pty Ltd, an employer, sought approval of a new enterprise agreement with the Australian Building and Construction Industry Employees and Builders Labourers Federation, an employee representative. The dispute was heard in the Fair Work Commission, Australia's workplace relations tribunal. The employer argued that the agreement met all relevant legal criteria and should be approved. The employee representative did not contest the approval of the agreement, but raised concerns about certain provisions.

The primary legal issue before the Commission was whether the agreement met the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement satisfied the Better Off Overall Test (BOOT), which requires that employees be no worse off financially under the new agreement than they would be under the previous agreement. The Commission also needed to consider whether the agreement complied with other relevant provisions of the Act, such as those relating to the protection of vulnerable employees.

The Commission found that the agreement met the BOOT, as well as all other legal requirements. The employer had demonstrated that employees would be better off overall under the new agreement, and that the agreement did not unfairly discriminate against any class of employees. The Commission also found that the agreement contained appropriate protections for vulnerable employees, such as those with disabilities or those who were pregnant. Based on these findings, the Commission approved the agreement.

The Fair Work Commission approved the Moolarben Coal Operations Pty Limited – Moolarben Underground Mine Enterprise Agreement 2017, finding that it met all legal requirements, including the Better Off Overall Test. The agreement is now in effect, and will govern the employment conditions of the employees represented by the Australian Building and Construction Industry Employees and Builders Labourers Federation.

Orders