Nyrstar Hobart Pty Ltd

[2022] FWCA 4241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nyrstar Hobart Pty Ltd

(AG2022/4913)

Nyrstar Hobart Maintenance Enterprise Agreement 2022

Mining industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 DECEMBER 2022

Application for approval of the Nyrstar Hobart Maintenance Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Nyrstar Hobart Maintenance Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nyrstar Hobart Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 1.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 December 2022. The nominal expiry date of the Agreement is 4 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Nyrstar Hobart Pty Ltd, an Australian mining company, was before the Fair Work Commission in an application to approve the Nyrstar Hobart Maintenance Enterprise Agreement 2022. The dispute centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to the procedural fairness in its development and the substantive fairness of its terms and conditions. The Commission was tasked with assessing the agreement to ensure it adhered to the principles of genuine agreement and good faith bargaining, as mandated by the Act.

The legal issues before the Commission included whether the agreement was genuinely negotiated and whether it complied with the procedural and substantive fairness requirements. This involved examining the process by which the agreement was developed, the extent of consultation and bargaining between the parties, and whether the terms and conditions were fair and reasonable. The Commission also needed to determine if the agreement met the specific criteria for approval under the Act, including whether it provided for the appropriate matters, was free from coercion, and was not likely to undermine the operation of the Act or its objects.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement was genuinely negotiated and met the requirements for approval. The Commission noted that the process followed was fair and transparent, with adequate consultation and bargaining between the parties. The terms and conditions of the agreement were also considered fair and reasonable, providing for appropriate matters and not undermining the operation of the Act. The Commission concluded that the agreement satisfied all the criteria for approval and was in the best interests of the employees and the employer.

The Commission approved the Nyrstar Hobart Maintenance Enterprise Agreement 2022, effective from the date of the decision. This approval ensures that the terms and conditions of employment are legally binding and enforceable, providing certainty and stability for both the employees and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established