Sedgman Operations Employment Services Pty Limited

[2023] FWCA 1457

[2023] FWCA 1457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Sedgman Operations Employment Services Pty Limited

(AG2023/1224)

SEDGMAN RED MOUNTAIN ENTERPRISE AGREEMENT 2023

Coal industry
COMMISSIONER PLATT	ADELAIDE, 23 MAY 2023

Application for approval of the Sedgman Red Mountain Enterprise Agreement 2023.

1. An application has been made for approval of an enterprise agreement known as the Sedgman Red Mountain Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sedgman Operations Employment Services Pty Limited (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 10 May 2023.

1. On 16 May 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are three National Employment Standards (NES) issues that require comment:

·   Compassionate Leave – Clause 5.4 of the Agreement provides for compassionate leave, however this clause is silent on the entitlement to leave when the employee, their spouse, or de facto partner gives birth to a stillborn child or has a miscarriage. This may be inconsistent with s104 of the Act.

·   Public Holidays- Entitlement to be absent - Clause 5.7.3 of the Agreement states ‘all public holidays will be worked by roster work Employees where they fall on rostered Shifts, with the exception of Christmas day and Boxing Day.’ This may be inconsistent with s114 of the Act which states that an employee is entitled to be absent on a public holiday.

·   Public Holidays – Substitution – Clause 5.7.5 of the Agreement states ‘where there is agreement between the majority of Employees and the Company, other working days may be substituted for the public holidays listed in clause 5.7.1.’ S115(3) of the Act provides that enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part day for a day, however this is between the individual employee and the employer only.

1. Clause 1.6 of the Agreement acts as an effective NES precedence clause, in that it states that “[t]he Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 17 May 2023. The undertaking deals with the following topics:

·  The Applicant undertakes that the definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·  The Applicant undertakes that, despite Clause 2.13.2 of the Agreement, the Company will only be liable to pay wages and other payments up to and including the last day of actual work, unless otherwise required by law.

·   The Applicant undertakes that it does not currently have any casual Employees, nor will any casual Employees be employed under the Agreement.

·   The Applicant undertakes that a part-time Employee, as defined in Clauses 2.2.2 and 2.2.3 of the Agreement, will be paid an Annual Aggregated Wage.

·   The Applicant undertakes that for the purposes of part-time Employees, Clause 10 of the Black Coal Mining Industry Award 2022 will be incorporated into the Agreement.

1. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) that responded, supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. 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 the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 29 May 2026.

COMMISSIONER

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