North Wambo Pty Ltd T/A North Wambo Underground - Peabody Energy Australia Summary

[2021] FWCA 6591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

North Wambo Pty Ltd T/A North Wambo Underground - Peabody Energy Australia
(AG2021/7908)

WAMBO UNDERGROUND ENTERPRISE AGREEMENT 2021

Coal industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 NOVEMBER 2021

Application for approval of the Wambo Underground Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Wambo Underground Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by North Wambo Pty Ltd T/A North Wambo Underground - Peabody Energy Australia. 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] I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 4.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 November 2021. The nominal expiry date of the Agreement is 7 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved North Wambo Pty Ltd trading as North Wambo Underground, an entity associated with Peabody Energy Australia, which applied for approval of the Wambo Underground Enterprise Agreement 2021. The application was made under the Fair Work Act 2009, seeking endorsement of the proposed agreement by the Fair Work Commission. The nature of the dispute was to determine if the agreement met the necessary criteria for approval, including whether it provided for fair and reasonable terms and conditions of employment.

The legal issues before the court centred on the interpretation and application of the Fair Work Act. Specifically, the court had to examine whether the agreement contained terms that were fair and reasonable and whether it complied with the legislative requirements for enterprise agreements. The court also needed to assess whether the agreement was made in good faith and if it provided for the protection of employees' rights and interests.

The Fair Work Commission examined the provisions of the agreement and considered submissions from both parties. The Commission found that the proposed agreement met the criteria for approval as it provided for fair and reasonable terms and conditions of employment, complied with the legislative requirements, and was made in good faith. The Commission also concluded that the agreement protected the rights and interests of the employees. Based on these findings, the Commission approved the Wambo Underground Enterprise Agreement 2021.

The Fair Work Commission's approval of the Wambo Underground Enterprise Agreement 2021 was subject to certain conditions, including the requirement for the agreement to be registered with the Fair Work Commission. The Commission also imposed conditions related to the implementation of the agreement and the provision of information to employees. The approval of the agreement was a significant step towards ensuring fair and reasonable terms and conditions of employment for the employees of North Wambo Underground.

North Wambo Pty Ltd T/A North Wambo Underground - Peabody Energy Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established