NRW Contracting Pty Ltd
[2023] FWCA 2219
•18 JULY 2023
| [2023] FWCA 2219 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
NRW Contracting Pty Ltd
(AG2023/1982)
NRW CONTRACTING PTY LTD MINING ENTERPRISE AGREEMENT 2023
| Mining industry | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 18 JULY 2023 |
Application for approval of the NRW Contracting Pty Ltd Mining Enterprise Agreement 2023.
An application has been made for approval of an enterprise agreement known as the NRW Contracting Pty Ltd Mining Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, NRW Contracting Pty Ltd. The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 5 April 2023 and the Agreement was made on 8 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]
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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.
Correspondence was sent by my chambers to the employer raising potential concerns regarding patterns of work and their potential impact on the better off overall test. The concern related to employees to whom Schedule A of the Agreement would apply. The employer submitted, and I accept, that: the pattern of work currently being performed by permanent Schedule A employees is a 2 week on and 1 week off roster working 12 hours on each day of the rostered on period with the rostered off period being unpaid; and employees usually only work day shifts with the very occasional night shift; and employees work a maximum of seven public holidays. For casual, the employer submitted – and I am satisfied – that: the pattern of work currently being performed by casual employees is a 2 week on and 1 week off roster working 12 hours on each day of the rostered on period with the rostered off period being unpaid; and employees usually only work day shifts with the very occasional night shift. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that patterns of work other than that just described for employees under Schedule A of the Agreement are not reasonably foreseeable, as that is relevant for the better off overall test.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A 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 sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The Agreement was approved on 18 July 2023 and, in accordance with s.54 of the Act, will operate from 25 July 2023. The nominal expiry date of the Agreement is 17 July 2027.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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