United Wambo Open Cut Pty Ltd T/A United Wambo Open Cut

[2022] FWCA 4313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

United Wambo Open Cut Pty Ltd T/A United Wambo Open Cut

(AG2022/4945)

United Wambo Open Cut Enterprise Agreement 2022

Mining industry
COMMISSIONER CIRKOVIC	MELBOURNE, 8 DECEMBER 2022

Application for approval of the United Wambo Open Cut Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the United Wambo Open Cut Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by United Wambo Open Cut Pty Ltd T/A United Wambo Open Cut. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Construction, Forestry, Maritime, Mining and Energy Union, 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.

The Agreement was approved on 8 December 2022 and, in accordance with s.54, will operate from 15 December 2022. The nominal expiry date of the Agreement is 8 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

United Wambo Open Cut Pty Ltd T/A United Wambo Open Cut sought approval of the United Wambo Open Cut Enterprise Agreement 2022 from the Fair Work Commission. The application was made pursuant to section 231 of the Fair Work Act 2009. The dispute centred around the terms and conditions of the proposed enterprise agreement, particularly those relating to employee rights and obligations, and whether these terms complied with the relevant statutory framework.

The central legal issues before the court were whether the proposed agreement satisfied the requirements of the Fair Work Act, including whether it met the ‘better off overall test’ and whether it complied with the prescribed minimum standards. The court had to determine if the agreement was fair and reasonable, and if it was in the interests of the employees, the employer, and the broader industrial relations system.

The Fair Work Commission found that the proposed enterprise agreement met the statutory requirements under the Fair Work Act. It concluded that the agreement was fair and reasonable, and that it met the ‘better off overall test’ as it provided a better outcome for the employees than what was previously available under the applicable award. The Commission also found that the agreement complied with the prescribed minimum standards and did not contain any unlawful terms. As such, the application for approval of the United Wambo Open Cut Enterprise Agreement 2022 was successful.

The Fair Work Commission approved the United Wambo Open Cut Enterprise Agreement 2022, allowing it to come into effect and govern the employment terms and conditions between United Wambo Open Cut and its employees. This decision confirmed the validity of the agreement and provided certainty for both the employer and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established