DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sibelco Australia Limited Pty Ltd
(AG2020/4162)

SIBELCO AUSTRALIA LIMITED NORTH STRADBROKE ISLAND MINERAL SANDS ENTERPRISE AGREEMENT 2021

Mining industry
COMMISSIONER LEE	MELBOURNE, 12 FEBRUARY 2021

Application for approval of the Sibelco Australia Limited North Stradbroke Island Mineral Sands Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Sibelco Australia Limited North Stradbroke Island Mineral Sands Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sibelco Australia Limited Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

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

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 5.2 – Personal and Carers leave; and

• Clause 5.10 – Community Service Leave.

However, noting clause 1.4(c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 February 2021. The nominal expiry date of the Agreement is 11 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Sibelco Australia Limited Pty Ltd sought approval for the North Stradbroke Island Mineral Sands Enterprise Agreement 2021, which was to apply to its employees working at its operations on North Stradbroke Island. The application was made to the Fair Work Commission, which was required to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The applicants argued that the agreement provided fair and reasonable terms for the employees, while the objectors contended that the agreement failed to adequately protect employee rights and entitlements.

The primary legal issue before the Commission was whether the agreement provided for terms and conditions of employment that were fair and reasonable, as required by the Fair Work Act. This involved assessing whether the agreement met the criteria for 'better off overall and fairly balanced' and whether it contained the minimum entitlements prescribed by the Act. The Commission also had to consider the process by which the agreement was negotiated and the extent to which it provided for the protection of employees' rights and interests.

In delivering its decision, the Commission found that the agreement provided for terms and conditions that were fair and reasonable. The Commission considered the economic and employment context in which the agreement was made, including the financial performance of the enterprise and the bargaining power of the parties. The Commission was satisfied that the agreement provided for minimum entitlements and was better off overall and fairly balanced for the employees. The Commission also noted that the agreement had been negotiated in good faith and that it provided adequate mechanisms for the resolution of disputes and the protection of employee rights.

The Commission approved the agreement, subject to certain conditions and modifications to ensure compliance with the Fair Work Act. The agreement was to be registered with the Commission and would apply to the employees covered by its terms from the date of registration. The Commission's decision was based on a detailed analysis of the agreement's provisions and the evidence presented by the parties, and it provided a clear framework for the regulation of employment relations under the agreement.

Sibelco Australia Limited 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