Peabody Energy Australia PCI Mine Management Pty Ltd

[2023] FWCA 262

[2023] FWCA 262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Peabody Energy Australia PCI Mine Management Pty Ltd

(AG2022/5514)

PEABODY AUSTRALIA COPPABELLA ENTERPRISE AGREEMENT 2022

Mining industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 25 JANUARY 2023

Application for approval of the Peabody Australia Coppabella Enterprise Agreement 2022.

1. Peabody Energy Australia PCI Mine Management Pty Ltd (the Applicant / Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Peabody Australia Coppabella Enterprise Agreement 2022 (the Agreement). The application was made on 22 December 2022 pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.  

1. Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses. I am satisfied that the effect of accepting the Undertakings is not likely to:

·   cause financial detriment to any employee covered by the Agreement; or

·   result in substantial changes to the Agreement.

1. The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s. 190(3) of the Act, I accept the Undertakings. In accordance with s. 201(3) of the Act, a copy of the Undertakings will be attached to the Agreement and forms part of the Agreement.

1. I observe that clause 13 of the Agreement, which deals with personal leave, may be inconsistent with the National Employment Standards (NES).

1. I note, however, that Clause 7 of the Agreement provides that, where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

1. I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and the responses to requests for further information provided by the Applicant, that each of the requirements of ss. 186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering ss. 186(3) and (3A), and based on the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

1. The Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (MEU), being bargaining representatives for the Agreement, has given notice under s. 183 of the Act that it wants to be covered by the Agreement. In accordance with s. 201(2) of the Act, I note that the Agreement covers the MEU.

1. The Agreement is approved in accordance with s. 54 of the Act and will commence operation on the seventh day from the date of this decision. The nominal expiry date of the Agreement is 1 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< AE519001  PR749987>