WALGA Mining & Services Pty Ltd T/A WALGA Mining & Services Pty Ltd

[2023] FWCA 3078

[2023] FWCA 3078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

WALGA Mining & Services Pty Ltd T/A WALGA Mining & Services Pty Ltd

(AG2023/3051)

WALGA IKMA ENTERPRISE AGREEMENT 2022

Mining industry
COMMISSIONER PLATT	ADELAIDE, 22 SEPTEMBER 2023

Application for approval of the WALGA IKMA Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the WALGA IKMA Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by WALGA Mining & Services Pty Ltd T/A WALGA Mining & Services Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 8 September 2023.

1. On 13 September 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. In respect of the Notice of Employee Representational Rights (NERR) deficiency I do not believe that failure to provide access to the Agreement 7 clear days prior to the vote had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. Given 64 out of 69 employees voted in favour of the Agreement, I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The Applicant has submitted an undertaking in the required form dated 21 September 2023. The undertaking deals with the following topics:

·  Clause 4.3 to read as, “Employees engaged on continuous shiftwork or 7-day roster shift work will be considered a shiftworker for the purposes of the NES."

·  Clause 5.1 to read as, “An Employee covered by this Agreement will be entitled to 240 hours of annual leave each year or 5 weeks of annual leave each year, whichever is greater."

·  Clause 5.6 to read as, “Employees are entitled to up to two (2) days paid compassionate leave (whether taken together or separately) in accordance with the NES.”

·  Clause 6.1(5) to read as, “The Company will not employ apprentices directly so long as the Agreement remains in force therefore the period of notice in clause 6.1(1) of the Agreement does not apply to apprentices.”

·  Clause 6.2(2) to read as, “If an Employee who is at least eighteen (18) years old fails to give the notice set out in clause 6. 1 of the Agreement, then the Company has the right to withhold monies due to the Employee from the Employee's final pay to a maximum amount equal to the amount the Employee would have received if they had worked out their notice (excluding any leave entitlements owed to the Employee).”

·  Clause 6.4 to read as, “If the conditions in clause 6.4(1) are met, the Company may terminate the Employee's employment at any time with immediate effect upon the provision of notice in accordance with clause 6. 1 of the Agreement or payment made in lieu of notice.”

·  Clause 7.3 to read as, “Where the affected Employee(s) refuse suitable alternative employment with the Company, redundancy payments will apply in accordance with the NES, subject to an application by the Employer pursuant to section 120 of the Act.”

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Australian Manufacturing 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act 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 7 days after the date of approval of the Agreement. The nominal expiry date is 28 September 2026.

COMMISSIONER

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