Tahmoor Coal Pty Ltd T/A Tahmoor Colliery Summary

[2022] FWCA 2507

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Tahmoor Coal Pty Ltd T/A Tahmoor Colliery

(AG2022/2364)

Application for approval of the GFG Tahmoor Colliery Enterprise Agreement 2022

Coal industry
Commissioner Lee	MELBOURNE, 26 JULY 2022

Application for approval of the GFG Tahmoor Colliery Enterprise Agreement 2022

Tahmoor Coal Pty Ltd T/A Tahmoor Colliery has made an application for approval of an enterprise agreement known as the GFG Tahmoor Colliery Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

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

· Clause 31.3 and 34.2.2 – Personal/Carer’s Leave.

However, noting clause 3.2 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.

The Agreement was approved on 26 July 2022 and, in accordance with s 54, will operate from 2 August 2022. The nominal expiry date of the Agreement is 26 July 2026.

COMMISSIONER
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CaseChat Overview and Summary

Tahmoor Coal Pty Ltd, trading as Tahmoor Colliery, applied to the Fair Work Commission for approval of the GFG Tahmoor Colliery Enterprise Agreement 2022. The company sought to establish a new enterprise agreement governing the terms and conditions of employment for its workers. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) which argued that the proposed agreement did not meet the requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act, specifically whether it met the requirements for a valid enterprise agreement. The Commission had to determine if the agreement contained all the necessary provisions, was fairly negotiated, and whether it provided for the appropriate minimum entitlements for the employees. Additionally, the Commission considered whether the agreement provided for appropriate processes for dispute resolution and whether it was consistent with the principles of the Fair Work Act.

The Commission found that the proposed agreement met all the statutory requirements for approval. It was concluded that the agreement contained all the necessary provisions, was fairly negotiated, and provided for the appropriate minimum entitlements for the employees. The Commission was satisfied that the agreement provided for appropriate processes for dispute resolution and was consistent with the principles of the Fair Work Act. The application was therefore approved.

The Fair Work Commission approved the GFG Tahmoor Colliery Enterprise Agreement 2022, finding that it complied with the statutory requirements of the Fair Work Act. The agreement was deemed to provide for appropriate minimum entitlements, processes for dispute resolution, and was consistent with the principles of the Act.

Tahmoor Coal Pty Ltd T/A Tahmoor Colliery

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established