DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

SRG Global Mining (Australia) Pty Ltd
(AG2020/312)

SRG GLOBAL MINING (AUSTRALIA) PTY LTD WA & NT ENTERPRISE AGREEMENT 2019

Mining industry
DEPUTY PRESIDENT LAKE	BRISBANE, 27 FEBRUARY 2020

Application for approval of the SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2019 - approval under s 190 – undertakings – model consultation term – inconsistency with NES.

[1] An application has been made for approval of an enterprise agreement to be known as the SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2019 (Agreement). The application was made under s 185 of the Fair Work Act 2009 (Act). It has been made by SRG Global Mining (Australia) Pty Ltd (Applicant).

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, 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, 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 – Annual Leave, as it does not provide additional annual leave for shift workers;

However, noting Clause 2 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] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 5 March 2020. The nominal expiry date of the Agreement is 27 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, SRG Global Mining (Australia) Pty Ltd, sought approval for an enterprise agreement in the Federal Circuit Court. The dispute centred around the terms of the agreement, specifically whether certain provisions were inconsistent with the National Employment Standards (NES). The agreement in question was the SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2019. The applicant argued that the enterprise agreement should be approved despite some inconsistencies with the NES, provided certain undertakings were given. These undertakings were intended to mitigate any adverse effects of the inconsistencies on employees.

The primary legal issue before the court was whether the enterprise agreement, despite its inconsistencies with the NES, could be approved under section 190 of the Fair Work Act 2009. The court had to consider whether the inconsistencies were justified and whether the undertakings provided sufficient protection for the employees. The court also needed to examine whether the model consultation term in the agreement aligned with the Fair Work Act. The applicant argued that the undertakings would ensure that employees would not be worse off overall, despite the inconsistencies with the NES.

The court found that the enterprise agreement contained terms inconsistent with the NES but concluded that these inconsistencies were justified given the specific circumstances of the applicant's business. The court accepted the undertakings as adequate to mitigate the impact of the inconsistencies on employees. Furthermore, the court found that the model consultation term in the agreement was consistent with the Fair Work Act. Therefore, the court approved the enterprise agreement under section 190 of the Fair Work Act, subject to the undertakings provided by the applicant.

The final orders of the court were that the SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2019 be approved under section 190 of the Fair Work Act 2009, on the condition that the applicant provide the specified undertakings to the Fair Work Commission. These undertakings were designed to ensure that employees would not be worse off overall due to the inconsistencies with the NES. The court's decision balanced the need for flexibility in enterprise bargaining with the protection of employees' rights.

SRG Global Mining (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