Newcrest Mining Limited T/A Cadia Valley Operations

[2017] FWCA 3371

[2017] FWCA 3371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Newcrest Mining Limited T/A Cadia Valley Operations
(AG2017/1431)

CADIA VALLEY OPERATIONS ENTERPRISE AGREEMENT 2017

Mining industry
COMMISSIONER ROE	MELBOURNE, 23 JUNE 2017

Application for approval of the Cadia Valley Operations Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Cadia Valley Operations Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Newcrest Mining Limited T/As Cadia Valley Operations. The Agreement is a single enterprise agreement.

[2] I raised a number of concerns regarding this Agreement with Newcrest. The Australian Workers Union (AWU) also raised a number of concerns in their F18 Statutory Declaration. There was extensive correspondence between the Commission and Newcrest and the AWU. Newcrest provided undertakings and submissions and then was provided with several opportunities to modify those undertakings. The AWU also provided submissions.

[3] The Commission finally advised both Newcrest and the AWU that subject to one final amendment to the undertakings it proposed to approve the Agreement. The Commission then received correspondence from the AWU advising that it did not consider the undertakings fully reflected earlier correspondence and that the AWU did not consider the undertakings adequate.

[4] In considering the submissions from the Australian Workers’ Union I had regard for the following:

● The minimum TEC rates contained in the Agreement when combined with the undertakings now offered ensure that employees are better off overall when compared to Clause 17 of the Mining Industry Award 2010.
● That the relatively small amount of additional time encompassed by the shift handover does not alter the conclusion that the better off overall test is satisfied.

● Clause 7.3 ensures that additional shifts are compensated in addition to the TEC.

● Current rosters, except for apprentices, are 12 hour shift rosters and this is made clear by Schedule 1.

● The undertakings ensure that excluding handover time work additional to 12 hours and additional shifts are paid outside the TEC and that if rosters are altered employees cannot be disadvantaged when compared to the award and if there is any significant change employees have access to the calculations of their revised TEC.

[5] I advised AWU and Newcrest of these conclusions and provided further notice of my intention to approve the Agreement.

[6] The Applicant 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.

[7] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[8] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] The Australian Workers’ 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.

[10] The Agreement was approved on 23 June 2017 and, in accordance with s.54, will operate from 30 June 2017. The nominal expiry date of the Agreement is 23 June 2021.

COMMISSIONER

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Annexure A