NRW Contracting Pty Ltd Summary

[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.

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application for the approval of the NRW Contracting Pty Ltd Mining Enterprise Agreement 2023. The parties involved in the dispute were the applicant, NRW Contracting Pty Ltd, and the respondent, the union representing the employees. The nature of the dispute centred around whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The application was heard in the Fair Work Commission, which has jurisdiction over such matters.

The primary legal issue that the court needed to address was whether the agreement was a "simplified procedure agreement" as defined in the Fair Work Act. This classification hinges on specific criteria, including the number of employees covered by the agreement and whether it has been negotiated in good faith. The court also needed to determine if the agreement contained all the necessary provisions required by the Act and whether it was in the best interests of the employees. The second issue was whether the agreement had been properly balloted according to the statutory requirements.

The court examined the agreement and found that it met the criteria for a simplified procedure agreement, given the number of employees involved and the evidence of good faith negotiations. The court was satisfied that the agreement contained all the necessary provisions and was in the best interests of the employees, based on the information provided. The ballot process was also found to comply with the statutory requirements. Consequently, the court approved the agreement under section 232 of the Fair Work Act. The union's concerns about certain provisions were addressed by the court, which found that the overall agreement was fair and balanced.

The final orders of the court were that the NRW Contracting Pty Ltd Mining Enterprise Agreement 2023 be approved and registered under the Fair Work Act. The court directed that the agreement be circulated to all employees, and it became effective from the date of the approval. The union was also directed to take all necessary steps to inform its members of the approval and the terms of the agreement. The court's decision provided clarity on the application process and the criteria for approval of enterprise agreements, setting a precedent for similar cases in the future.

NRW Contracting Pty Ltd

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