Tasmania Mines Pty Ltd

[2020] FWCA 1941

[2020] FWCA 1941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tasmania Mines Pty Ltd
(AG2020/946)

TASMANIA MINES ENTERPRISE AGREEMENT 2020

Mining industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 14 APRIL 2020

Application for approval of the Tasmania Mines Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Tasmania Mines Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tasmania Mines Pty Ltd. The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[3] Clause 5.1 of the Agreement provides that the National Employment Standards (NES) apply at all times to the employees covered by the Agreement. In this respect, I note that although the Agreement does not explicitly refer to the NES entitlement both to extend a period of unpaid parental leave for up to twelve months and for employees to take unpaid carer’s leave, these NES entitlements will apply to the employees covered by the Agreement.

[4] I further note that Clause 12.3(b) of the Agreement provides that if an employee fails to provide Tasmania Mines Pty Ltd with the required period of notice of termination, it may withhold “monies” due to the employee on termination under the Agreement or the NES to an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice required by Clause 12.1 less any period of notice actually given by the employee. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act if applied in relation to “monies” due that relate to untaken paid annual leave, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] The Australian Workers Union (AWU), 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 the statutory declaration provided by the AWU, I note that the Agreement covers the AWU.

[6] The Agreement was approved on 14 April 2020 and, in accordance with s.54, will operate from 21 April 2020. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

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