Moolarben Coal Operations Pty Ltd

[2015] FWCA 8438

[2015] FWCA 8438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Moolarben Coal Operations Pty Ltd
(AG2015/6775)

MOOLARBEN COAL OPERATIONS PTY LIMITED - MOOLARBEN OPEN CUT MINE ENTERPRISE AGREEMENT 2015

Mining industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 DECEMBER 2015

Application for approval of the Moolarben Coal Operations Pty Limited - Moolarben Open Cut Mine Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Moolarben Coal Operations Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Moolarben Coal Operations Pty Limited – Moolarben Open Cut Mine Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Construction, Forestry, Mining and Energy Union - Mining and Energy Division (the ‘Union’) and is to cover 150 employees who are employed at the applicant’s open cut coal mine at Moolarben, New South Wales and who would otherwise be covered by Schedule A of the Black Coal Mining Industry Award 2010. I note that employees working at the Coal Handling and Preparation Plant are covered by another enterprise agreement. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 24 March 2014 and voting for the Agreement’s approval took place between 9 and 13 November 2015. The time limits under s 181(2) of the Act are thereby satisfied. In an attendance ballot, 86 of the 111 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 20 November 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Arnold, Human Resources Manager, identified the Black Coal Mining Industry Award 2010 [MA000001] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Arnoldsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including changes to the manner in which personal leave is deducted, less notice of termination and the removal of a four hour minimum engagement for casual employees. However, the Agreement provides for a range of terms and conditions that are more beneficial than those under the Award, including higher rates of pay, a fortnightly bonus, enhanced allowances and payment of accrued personal leave on termination in certain circumstances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.5 and 4.6 respectively, and a disputes resolution procedure at clause 4.7 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 3 December 2015, Mr G Arnold appeared for the applicant and Mr A Honeysett for the Union. Mr Arnold outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that rates of pay are to be increased by 2% 16 months after the date of the approval of the Agreement and then by a further 2%, 32 months after the date of the approval of the Agreement. Mr Honeysett supported the submissions of Mr Arnold.The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Moolarben Coal Operations Pty Limited – Moolarben Open Cut Mine Enterprise Agreement 2015. Pursuant to s 54 of the Act, the Agreement shall operate from 10 December 2015 and have a nominal expiry date of 1 November 2019.

DEPUTY PRESIDENT

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