DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Moolarben Coal Operations Pty Ltd; Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/1749)

MOOLARBEN COAL OPERATIONS PTY LIMITED - MOOLARBEN OPEN CUT MINE ENTERPRISE AGREEMENT 2020

Coal industry
COMMISSIONER LEE	MELBOURNE, 14 JULY 2020

Application for approval of the Moolarben Coal Operations Pty Limited – Moolarben Open Cut Mine Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Moolarben Coal Operations Pty Limited – Moolarben Open Cut Mine Enterprise Agreement 2020 (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; Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

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

[3] Subject to the undertakings 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.

[4] 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.

[5] 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.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 2.6 – Personal Leave; and

● Clause 2.8.2(c) –Public Holiday Payment.

However, noting written undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 July 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Moolarben Coal Operations Pty Ltd, the applicant, and the Construction, Forestry, Maritime, Mining and Energy Union, the respondent, the Federal Court was called upon to determine the approval of the Moolarben Coal Operations Pty Limited – Moolarben Open Cut Mine Enterprise Agreement 2020. The application sought the Court's endorsement of the proposed enterprise agreement, which aimed to regulate the terms and conditions of employment between the company and its workforce. The union contested the application on various grounds, primarily asserting that the proposed agreement did not meet the necessary standards for approval under the Fair Work Act 2009.

The primary legal issues before the Court were whether the proposed enterprise agreement complied with the legislative requirements set out in the Fair Work Act, and whether the agreement was made in good faith and without coercion. This involved an examination of the agreement's provisions, particularly in relation to employee entitlements, workplace conditions, and the process through which the agreement was negotiated. The Court had to ensure that the agreement met the statutory criteria, which included being free from unlawful content, providing fair terms and conditions, and being beneficial to the employees.

The Court, in its judgment, meticulously reviewed the terms of the proposed agreement, considering the submissions from both parties. The Moolarben Coal Operations Pty Ltd argued that the agreement was the result of genuine negotiations and reflected a fair and reasonable compromise between the company and the union. Conversely, the union raised concerns about specific provisions, including those relating to wages, working hours, and dispute resolution mechanisms. After thorough deliberation, the Court found that the proposed agreement did indeed meet the statutory criteria for approval. The Court concluded that the agreement was fair and reasonable, providing for the employees' terms and conditions in a manner consistent with the legislative framework. The Court approved the Moolarben Coal Operations Pty Limited – Moolarben Open Cut Mine Enterprise Agreement 2020, thereby resolving the dispute in favour of the applicant.

Moolarben Coal Operations Pty Ltd; Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established