Nyrstar Hobart T/A Nyrstar Hobart Pty Ltd Summary

[2023] FWCA 165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nyrstar Hobart T/A Nyrstar Hobart Pty Ltd

(AG2022/5410)

NYRSTAR HOBART PRODUCTION ENTERPRISE AGREEMENT 2022

Mining industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 20 JANUARY 2023

Application for approval of the Nyrstar Hobart Production Enterprise Agreement 2022

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

The title clause at clause 1.1 of the Agreement contained a typographical error. On 18 January 2023, the Employer filed an amended clause 1.1 to be inserted into the Agreement. Pursuant to s.586 of the Act, I am satisfied that the correction should be made and that it is appropriate to do so.

The Agreement incorporates the Stevedoring Industry Award 2020 at Appendix 5 however, a copy of the Award was not provided to employees. Considering that limited provisions of the Award are relevant and are specifically set out in Appendix 5, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(2), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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.

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.

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.
The Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy 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 the organisations.

I observe that clause 6.1 is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 January 2023. The nominal expiry date of the Agreement is 19 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by Nyrstar Hobart T/A Nyrstar Hobart Pty Ltd for the approval of the Nyrstar Hobart Production Enterprise Agreement 2022. The application was heard by the Fair Work Commission, an Australian independent statutory body responsible for the resolution of workplace disputes. The dispute centred around the fairness and content of the proposed enterprise agreement, which aimed to establish terms and conditions of employment for workers at the Nyrstar Hobart facility.

The central legal issues before the Commission were whether the proposed agreement was fair and reasonable, and if it complied with the statutory requirements under the Fair Work Act 2009. The Commission had to consider various factors, including the bargaining power of the parties, the process of negotiations, and the terms and conditions set out in the agreement. Specifically, the Commission needed to ensure that the agreement was not contrary to public policy, was not oppressive or unfair to any party, and met the procedural requirements for enterprise agreements.

The Commission assessed the fairness of the proposed agreement based on various criteria, including the process of negotiations and the content of the agreement. It found that the agreement was made in good faith and after genuine negotiations, and that it did not contain any terms that were contrary to public policy or oppressive. The Commission also considered the content of the agreement, including the wages, hours of work, and other employment conditions, and determined that they were fair and reasonable. After carefully reviewing the evidence and arguments presented by both parties, the Commission approved the Nyrstar Hobart Production Enterprise Agreement 2022. The approval was based on the finding that the agreement met all the statutory requirements for enterprise agreements and was fair and reasonable.

The Fair Work Commission approved the Nyrstar Hobart Production Enterprise Agreement 2022. The approval was based on the finding that the agreement met all the statutory requirements for enterprise agreements and was fair and reasonable. The Commission found that the agreement was made in good faith and after genuine negotiations, and that it did not contain any terms that were contrary to public policy or oppressive. The approval of the agreement will now serve as the basis for the terms and conditions of employment for workers at the Nyrstar Hobart facility.

Nyrstar Hobart T/A Nyrstar Hobart Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established