SRG Global Mining (Australia) Pty Ltd

[2021] FWCA 3105

[2021] FWCA 3105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SRG Global Mining (Australia) Pty Ltd
(AG2021/5233)

SRG GLOBAL MINING (AUSTRALIA) PTY LTD SA ENTERPRISE AGREEMENT

Mining industry
COMMISSIONER PLATT	ADELAIDE, 31 MAY 2021

Application for approval of the SRG Global Mining (Australia) Pty Ltd SA Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SRG Global Mining (Australia) Pty Ltd SA Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by SRG Global Mining (Australia) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 25 May 2021, and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 28 May 2021. The undertaking deals with the following topics:

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  Casual conversion may be requested when an employee has been employed for a period of 12 months and has worked a pattern which could be continued without significant adjustment from the previous 6 months, in accordance with the NES.

•  Clause 23.4 will not apply where it permits the employer to not make severance payments in the absence of an order from the Fair Work Commission under s.120 of the Act.

•  The Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery 1for all employees who would otherwise be covered by the Mining Industry Award 2020.

[4] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. It is noted that one of the employee bargaining representatives sought the definition of shiftwork contained in the Agreement be varied, however it is not within my power as Commissioner to vary the Agreement in this respect.

[5] 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.

[6] There are three NES issues that require comment.

[7] Clause 32.3(b) provides that pro rata leave will be paid at the base rate on termination, whereas clause 32.3(a) provides that annual leave is paid at loaded rates when taken. Section 90 of the Act provides that if an employee’s employment ends and they have a period of untaken paid annual leave, the employer must pay the employee the amount they would have received had they taken that leave. Clause 2 of the Agreement is a NES Precedence Clause, which states that where there is an inconsistency between the 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, employees will be paid pro rata leave on termination at the same rates that they would have received if they had taken that leave.

[8] Clause 32.4 provides that an employee may cash out leave subjection to the retention of 152 hours of leave. Section 93(2) of the Act states that annual leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks. As a result of the NES Precedence Clause, clause 32.4 will not operate to the extent it allows employees to be left with less than four weeks of accrued leave.

[9] Clause 34.2 of the Agreement provides that employees are required to work on public holidays. This is inconsistent with s.114 of the Act. As a result of the NES Precedence Clause, the employer may only request an employee to work on a public holiday if the request is reasonable, and if such a request is made, the employee may refuse the request if the refusal is reasonable, in accordance with s.114 of the Act.

[10] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[11] 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.

[12] 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 31 May 2025.

COMMISSIONER

 1   [2017] FWCFB 1664

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