Whitehaven Coal Limited

[2025] FWCA 1706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Whitehaven Coal Limited

(AG2025/1207)

WHITEHAVEN COAL OPEN CUT OPERATIONS (WERRIS CREEK) ENTERPRISE AGREEMENT 2024

Mining industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 21 MAY 2025

Application for approval of Whitehaven Coal Open Cut Operations (Werris Creek) Enterprise Agreement 2024

Introduction

Whitehaven Coal Limited (the Employer) has made an application for approval of an enterprise agreement known as the Whitehaven Coal Open Cut Operations (Werris Creek) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 17 December 2024 and the Agreement was made on 11 April 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Mining and Energy Union (MEU), 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 MEU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 May 2025. The nominal expiry date of the Agreement is 11 February 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Whitehaven Coal Limited, applied for the approval of the Whitehaven Coal Open Cut Operations (Werris Creek) Enterprise Agreement 2024. The applicant is an employer within the meaning of the Fair Work Act 2009 (Cth), and the respondent is a registered organisation. The agreement in question concerns the terms and conditions of employment for certain employees of the applicant. The primary dispute revolves around the procedural fairness and the substantive fairness of the agreement, particularly whether it complies with the statutory requirements set out in the Fair Work Act and the Fair Work Regulations 2009 (Cth).

The court was required to determine whether the agreement was made in accordance with the procedural requirements of the Fair Work Act, including whether it was made freely and voluntarily by the parties. The court also needed to assess if the agreement met the substantive fairness test, ensuring it did not adversely affect employees' conditions of employment. This included examining the balance of the agreement in terms of wages, hours of work, and other conditions of employment, as well as whether it appropriately reflected the needs of the business and the workforce.

The Fair Work Commission found that the agreement was made in compliance with the procedural requirements of the Act, including that it was negotiated in good faith and was not the result of any form of coercion or undue influence. The Commission also considered the substantive fairness of the agreement, noting that it provided for fair and reasonable terms and conditions of employment. It was determined that the agreement did not adversely affect the employees' conditions and reflected a fair balance between the interests of the employer and the employees. The Commission approved the agreement, finding it met the statutory requirements and was fair and reasonable in all the circumstances.

The final order of the Fair Work Commission was that the Whitehaven Coal Open Cut Operations (Werris Creek) Enterprise Agreement 2024 be approved. The Commission determined that the agreement was made in compliance with the procedural requirements of the Fair Work Act and was fair and reasonable in terms of its substantive content. The approval of the agreement was thus granted, and it became effective from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established