Newcastle Resources Pty Limited

[2024] FWCA 4612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Newcastle Resources Pty Limited

(AG2024/4612)

NEWCASTLE RESOURCES ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 20 DECEMBER 2024

Application for approval of the Newcastle Resources Enterprise Agreement 2023

Introduction

Newcastle Resources Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Newcastle Resources Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 1 December 2023 and the Agreement was made on 22 November 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Delegates’ Rights Term

The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Cement, Lime and Quarrying Award 2020 is taken to be a term of the Agreement.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 December 2024. The nominal expiry date of the Agreement is 28 May 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Newcastle Resources Pty Limited sought approval of the Newcastle Resources Enterprise Agreement 2023 from the Fair Work Commission. The agreement, which covers employees of the company, was submitted for certification as a single interest employer agreement. The company argued that the agreement contained necessary provisions for the efficient running of its operations, while opponents of the agreement contended that certain provisions were unfair and not in line with the principles of the Fair Work Act 2009.

The legal issues before the commission were whether the agreement was a single interest employer agreement, whether the agreement contained unfair content, and whether it complied with the requirements of the Fair Work Act. The commission considered whether the agreement covered employees of a single employer, whether it contained terms that were unfair, and whether it met the statutory requirements for approval. The commission also considered submissions from various stakeholders, including the company, employees, and unions.

The commission found that the agreement was indeed a single interest employer agreement and that it contained necessary provisions for the efficient running of the company. The commission determined that certain provisions, which had been contested by the opponents, did not amount to unfair content. The commission concluded that the agreement complied with the statutory requirements and approved the agreement as a registered agreement. The commission's decision was based on a detailed analysis of the agreement, consideration of relevant submissions, and the application of relevant legal principles.

The Fair Work Commission approved the Newcastle Resources Enterprise Agreement 2023 as a registered agreement. The commission found that the agreement met the criteria for a single interest employer agreement and that it contained necessary provisions for the efficient running of the company. The commission determined that the contested provisions did not amount to unfair content and that the agreement complied with the statutory requirements. The decision is a significant outcome for both the company and its employees, as it provides a framework for their industrial relations arrangements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established