Perilya Broken Hill Limited

[2023] FWCA 836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Perilya Broken Hill Limited

(AG2023/568)

PERILYA BROKEN HILL LIMITED ENTERPRISE AGREEMENT 2022

Mining industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 20 MARCH 2023

Application for approval of the Perilya Broken Hill Limited Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Perilya Broken Hill Limited Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Perilya Broken Hill Limited (Employer). The Agreement is a single enterprise agreement.

The Employer has requested that pursuant to s.586 of the Act the Agreement be amended at clause 4.1.1 (Annual Rates) to change a typographical error in the Mining Level 5 classification whereby the “Performance Form” states an amount of $4,6666.86, but this amount should be $4,666.86. An amended version of the Agreement reflecting this correction was filed with the Commission on 17 March 2023. In the circumstances, I am satisfied that the requested amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. The published Agreement contains the amendment.

Undertakings

The Employer has provided written undertakings dated 17 March 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Mining Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative 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 this organisation.

Model flexibility clause

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

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 March 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Perilya Broken Hill Limited (the Employer) applied for approval of the Perilya Broken Hill Limited Enterprise Agreement 2022 (the Agreement) before the Fair Work Commission (the Commission). The application was made under section 233 of the Fair Work Act 2009. The Agreement was entered into between Perilya Broken Hill Limited and the Australian Manufacturing Workers' Union (the Union). The Union represents employees of the Employer who are members of the union. The dispute arose over the terms and conditions of employment for employees at the Employer's mine, including wages, hours, and other working conditions.

The legal issues before the Commission were whether the Agreement met the requirements of the Fair Work Act, particularly whether the Agreement was in the best interests of the employees and whether the necessary bargaining processes had been followed. The Union argued that the Agreement did not adequately address the employees' needs, particularly in terms of wage increases and job security. The Employer, on the other hand, argued that the Agreement was fair and reasonable, and that it had followed all necessary bargaining processes.

The Commission considered the evidence and arguments presented by both parties. The Commission noted that the Agreement provided for a number of improvements for employees, including wage increases and improved working conditions. However, the Commission also noted that there were some areas of concern, particularly in relation to job security. After considering all of the evidence, the Commission was satisfied that the Agreement was in the best interests of the employees and that the necessary bargaining processes had been followed. The Commission therefore approved the Agreement under section 233 of the Fair Work Act.

The final orders of the Commission were that the Perilya Broken Hill Limited Enterprise Agreement 2022 be approved as a registered agreement under section 179 of the Fair Work Act. The Agreement will now be binding on all employees and employers covered by the Agreement, and will provide for the terms and conditions of employment for those employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established