Tasmanian Advanced Minerals Pty Ltd

[2023] FWCA 2373

[2023] FWCA 2373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tasmanian Advanced Minerals Pty Ltd

(AG2023/2032)

TASMANIAN ADVANCED MINERALS ENTERPRISE AGREEMENT 2023

Mining industry
COMMISSIONER MATHESON	SYDNEY, 31 JULY 2023

Application for approval of the Tasmanian Advanced Minerals Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Tasmanian Advanced Minerals Enterprise Agreement 2023 (Agreement). The application was made by Tasmanian Advanced Minerals Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. Form F17A indicates that the notification time for the Agreement was 10 May 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act relating to genuine agreement in force immediately prior to 6 June 2023.

1. An error was made in the application in that it named the Applicant as Tasmanian Advanced Minerals, rather than Tasmanian Advanced Minerals Pty Ltd. The Applicant applied for a correction. Pursuant to s.586 of the Act, I allow the correction to the application so that it reflects the correct name of the Applicant, being Tasmanian Advanced Minerals Pty Ltd. Further, an error was made in the Form F17A in that it stated the name of the Agreement as the ‘Tasmanian Advanced Minerals Enterprise Agreement 2018’. The Applicant applied for a correction such that the name of the Agreement as stated in the Form F17A is as reflected in clause 1.1 of the Agreement and the application. Pursuant to s.586 of the Act, I allow the correction to the Form F17A so that it reflects the correct name of the Agreement being ‘Tasmanian Advanced Minerals Enterprise Agreement 2023’.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

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

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 August 2023. The nominal expiry date of the Agreement is 31 July 2027.

COMMISSIONER

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Annexure A