SRG Global Mining (Australia) Pty Ltd T/A Srg Global Mining (Australia) Pty Ltd

[2024] FWCA 3268

[2024] FWCA 3268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SRG Global Mining (Australia) Pty Ltd T/A Srg Global Mining (Australia) Pty Ltd

(AG2024/3163)

SRG GLOBAL MINING (AUSTRALIA) PTY LTD QLD ENTERPRISE AGREEMENT 2024

Mining industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 16 SEPTEMBER 2024

Application for approval of the SRG Global Mining (Australia) Pty Ltd Qld Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the SRG Global Mining (Australia) Pty Ltd Qld Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SRG Global Mining (Australia) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[2] The Applicant provided a list of casual employees who were engaged during the relevant period. I am satisfied that the Agreement was genuinely agreed to by relevant employees.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[3] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 22.4 – Casual Conversion.

· Clause 39 – Compassionate Level may be inconsistent with s104(1)(c) of the Act.

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.

1. The Australian Workers Union (AWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the AWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 15 September 2028.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 75992.

[3] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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