Victory Minerals Pty Ltd

[2025] FWCA 1366

[2025] FWCA 1366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Victory Minerals Pty Ltd

(AG2025/887)

VICTORY MINERALS ENTERPRISE AGREEMENT 2025

Mining industry
COMMISSIONER ALLISON	MELBOURNE, 6 MAY 2025

Application for approval of the Victory Minerals Enterprise Agreement 2025

1. Victory Minerals Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Victory Minerals Enterprise Agreement 2025 (the Agreement).

1. The Australian Workers’ 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.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Victory Minerals Enterprise Agreement 2024” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

1. The following provisions may be inconsistent with the National Employment Standards (NES):

• The definition of “household member” in clause 7 may be more restrictive than the definition provided in s.107 of the Act, for the purposes of personal and carer’s leave requirements.

• Clause 40.1, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage. It also does not provide an entitlement to take compassionate leave in relation to a member of the employee’s household. This is inconsistent with ss.104 and 105 of the Act.

• Clause 24.2, which states that severance pay is not payable where the Employer finds suitable alternative employment for the employee, does not specify that this is subject to an application under s.120 of the Act.

• Clause 23.6, relating to abandonment of employment, does not specify that an employee is entitled to notice of termination in accordance with ss.117-123 of the Act when abandoning their employment.

• Clauses 23.5 and 26.1, relating to deductions on termination of employment, may allow the Employer to withhold monies due to an employee under the NES.

1. The Employer provided an NES precedence undertaking to resolve the above issues. Noting clause 6.1 of the Agreement and the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The definition of shiftworker provided at clause 7 of the Agreement did not specify that it was for the purposes of the NES. The Employer has provided an undertaking to resolve this concern.

1. The pay rates at Clauses 27.2 and 27.3 of the Agreement for permanent employees are inclusive of all alternative entitlements to monetary allowances or loadings for additional hours, public holidays, and shiftwork, which are provided by the Mining Industry Award 2020. I expressed a concern that if employees were asked to work a high number of hours in circumstances where they would receive these Award entitlements, they may not be better off overall. The Employer provided an undertaking to the effect that it will conduct regular audits to ensure that its employees are paid above Award and pay any shortfalls, to resolve this concern.

1. I expressed a further concern that the loaded pay rates for casual employees at clause 34.6(b) of the Agreement may not ensure that casual employees are better off overall under the Agreement, in circumstances where they are engaged only at times that would attract penalty rates under the Award. The Employer provide a further undertaking that it will conduct regular audits to ensure that casual employees are paid above Award and pay any shortfalls, to resolve this concern.

1. 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.

1. Pursuant to s.594(1)(c) of the Act, the Employer applied to the Commission for orders that the signature page of the Agreement be redacted because it included the names and private addresses of various employee bargaining representatives. The Employer submitted that the disclosure of the names and private addresses of the employees who signed the Agreement could result in adverse consequences for those individuals from third parties or members of the public who obtain these details.  

1. I have considered the submissions made in support of the application under s.594(1)(c), and the fact that the AWU is a bargaining representative to the Agreement. Ultimately, I have determined to order that the names and private addresses of employee bargaining representatives be redacted on the published version of the Agreement.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 May 2025. The nominal expiry date of the Agreement is 6 May 2027.

COMMISSIONER

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Annexure A