DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Red Mulga Australia Pty Ltd
(AG2021/7952)

RED MULGA AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2021-2025

Mining industry
COMMISSIONER MATHESON	SYDNEY, 12 NOVEMBER 2021

Application for approval of the Red Mulga Australia Pty Ltd Enterprise Agreement 2021-2025.

[1] An application has been made for approval of an enterprise agreement known as the Red Mulga Australia Pty Ltd Enterprise Agreement 2021-2025 (Agreement). The application was made by Red Mulga Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] Since the application was made, the Commission raised concerns about the form of the application, whether the pre-approval requirements were met and whether the agreement passes the better off overall test. Further information was provided in relation to those concerns.

[3] Clause 1 of the Agreement contains an apparent error stating that the name of the “Employer” is “Red Mulga Pty Ltd”. The Applicant confirmed this was an error and that the correct name of the “Employer” is the name of the Applicant, being “Red Mulga Australia Pty Ltd”. The Applicant sought a correction to clause 1 of the Agreement to reflect this. Pursuant to s.586 of the Act, I amend the name of “Employer” in clause 1 of the Agreement to “Red Mulga Australia Pty Ltd”.

[4] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 3.7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings. The bargaining representatives did not oppose the undertakings. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[6] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[7] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 November 2021. The nominal expiry date of the Agreement is four years from the date of approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter in Red Mulga Australia Pty Ltd involved the application for the approval of the Enterprise Agreement 2021-2025 between the employer, Red Mulga Australia Pty Ltd, and the employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was brought before the Fair Work Commission (FWC) by the employer, seeking formal endorsement of the agreement. The legal issues at the centre of the decision revolved around whether the agreement complied with the statutory requirements under the Fair Work Act 2009 and whether it had been genuinely bargained between the parties. Specifically, the FWC had to assess if the agreement contained all the required terms and conditions and if it had been made free from any improper conduct or coercion.

The FWC meticulously examined the contents of the Enterprise Agreement, ensuring it covered all the mandated terms and conditions set out in the Fair Work Act. The Commission also evaluated whether the agreement was genuinely negotiated between the employer and the union. The FWC took into account the evidence presented regarding the bargaining process, including the negotiation history, the union's role, and the fairness of the agreement's terms. In its reasoning, the FWC concluded that the agreement satisfied all legal requirements and was genuinely negotiated. The evidence supported that the agreement was fair and balanced, taking into account the interests of both the employer and the employees.

Following the thorough analysis, the FWC approved the Enterprise Agreement 2021-2025. The decision was based on the FWC's determination that the agreement met all statutory requirements and was the result of genuine negotiations. The formal endorsement of the agreement ensures that it will be legally binding and enforceable between the parties. This decision provides clarity and certainty for both the employer and the employees, establishing the terms and conditions of employment for the specified period.

Red Mulga Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established