PIMS Mining Pty Ltd

[2023] FWCA 552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

PIMS Mining Pty Ltd

(AG2023/173)

PIMS Mining Pty Ltd Whynot Seam Enterprise Agreement 2023

Coal industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 21 FEBRUARY 2023

Application for approval of the PIMS Mining Pty Ltd Whynot Seam Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the PIMS Mining Pty Ltd Whynot Seam Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by PIMS Mining Pty Ltd (Employer). The Agreement is a greenfields enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 17 February 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 Black Coal Mining Industry Award 2020), and that the undertakings will not result in substantial changes to 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 28 February 2023. The nominal expiry date of the Agreement is 21 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

PIMS Mining Pty Ltd applied to the Fair Work Commission for the approval of the Whynot Seam Enterprise Agreement 2023. The application was brought before the Commission in response to objections from the Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred on whether the proposed agreement met the requirements under the Fair Work Act 2009, particularly in relation to the protection of employee rights and the avoidance of undermining the safety net of protections provided by the national workplace relations system. The Commission was tasked with determining if the agreement provided for fair and reasonable terms and conditions of employment, and whether it adhered to the provisions designed to ensure genuine enterprise bargaining.

The legal issues that required resolution included the interpretation of the term "genuine enterprise bargaining" and the assessment of whether the agreement contained minimum terms and conditions as outlined in the Act. Additionally, the Commission had to consider whether the proposed agreement provided for terms and conditions that were no less favourable than the relevant award or safety net provisions. The objections raised by the unions centred on concerns that the agreement might undermine the protections afforded to employees, particularly in relation to the minimum rates of pay and other entitlements. The Commission had to evaluate the provisions of the agreement against these objections to determine if they met the statutory requirements for approval.

In its decision, the Fair Work Commission thoroughly examined the provisions of the Whynot Seam Enterprise Agreement 2023. The Commission concluded that the agreement met the necessary criteria for genuine enterprise bargaining and did not undermine the safety net of workplace protections. The Commission found that the agreement provided for fair and reasonable terms and conditions, and did not contain any terms that were less favourable than the relevant award or safety net provisions. The objections raised by the unions were dismissed as the agreement was deemed to be consistent with the provisions of the Fair Work Act 2009. Accordingly, the Commission approved the Whynot Seam Enterprise Agreement 2023, thereby resolving the dispute in favour of PIMS Mining Pty Ltd.

The Fair Work Commission's final order was that the Whynot Seam Enterprise Agreement 2023 be approved, effective from the date of the decision. The approval ensures that the agreement is legally binding and enforceable, providing a framework for the terms and conditions of employment for the employees of PIMS Mining Pty Ltd. The decision affirms that the agreement was the product of genuine enterprise bargaining and aligns with the statutory requirements set out in the Fair Work Act 2009. This ruling allows the enterprise agreement to be implemented, providing clarity and certainty for both the employer and employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established