Tahmoor Coal Pty Ltd T/A Tahmoor Colliery

[2024] FWCA 1561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tahmoor Coal Pty Ltd T/A Tahmoor Colliery

(AG2024/1196)

APPLICATION FOR APPROVAL OF THE GFG TAHMOOR COLLIERY DEPUTIES ENTERPRISE AGREEMENT 2024

Mining industry
COMMISSIONER LEE	MELBOURNE, 29 APRIL 2024

Application for approval of the GFG Tahmoor Colliery Deputies Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the GFG Tahmoor Colliery Deputies 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 Tahmoor Coal Pty Ltd T/A Tahmoor Colliery. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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.

The Association of Professional Engineers, Scientists and Managers, Australia 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) I note that the Agreement covers the organisation.

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

·Clause 12.3.6 – Personal Leave

However, noting clause 1.7 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2024. The nominal expiry date of the Agreement is 29 April 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by Tahmoor Coal Pty Ltd, trading as Tahmoor Colliery, to the Fair Work Commission for the approval of the GFG Tahmoor Colliery Deputies Enterprise Agreement 2024. The agreement sought to regulate the terms and conditions of employment for deputies at the Tahmoor Colliery. The dispute arose from the need to ensure that the proposed agreement met the legal requirements under the Fair Work Act 2009, including the need for the agreement to comply with the "better off overall test" to ensure that employees would not be worse off financially under the new agreement.

The primary legal issues before the court were whether the proposed agreement satisfied the criteria for approval under the Fair Work Act and, specifically, if it met the "better off overall test." This test requires that, after taking into account all the terms and conditions of the agreement, the employees must not be worse off overall compared to their previous conditions. The court also had to consider if the agreement complied with the procedural requirements, including adequate consultation with the employees and the provision of necessary documentation.

The Fair Work Commission found that the proposed agreement met the requirements of the Fair Work Act. The commission considered the evidence provided by both parties and the analysis of the financial implications for the employees. It was determined that the agreement did not result in any employee being worse off overall. The commission also confirmed that the procedural requirements, including proper consultation, were met. Consequently, the application for approval was granted.

The Fair Work Commission approved the GFG Tahmoor Colliery Deputies Enterprise Agreement 2024, confirming its compliance with the Fair Work Act and the "better off overall test." The decision was made based on the evidence presented and the analysis conducted by the commission, ensuring that all legal requirements were satisfied.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established