Whitehaven Coal Mining Limited Summary

[2018] FWCA 6329

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Whitehaven Coal Mining Limited

(AG2018/2505)

Whitehaven Coal Open Cut Operations Production (Tarrawonga) Enterprise Agreement 2018

Coal industry
Commissioner Harper-Greenwell	MELBOURNE, 12 OCTOBER 2018

Application for approval of the Whitehaven Coal Open Cut Operations Production (Tarrawonga) Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Whitehaven Coal Open Cut Operations Production (Tarrawonga) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Whitehaven Coal Mining Limited. 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.

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 12 October 2018 and, in accordance with s.54, will operate from 19 October 2018. The nominal expiry date of the Agreement is 7 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Whitehaven Coal Mining Limited, sought approval of the Whitehaven Coal Open Cut Operations Production (Tarrawonga) Enterprise Agreement 2018. The respondents were the Australian Council of Trade Unions and various registered unions. The nature of the dispute involved the approval of an enterprise agreement under the Fair Work Act 2009, specifically whether the agreement met the requirements for "better off overall" and "no disadvantage" tests.

The primary legal issues the court had to determine were whether the enterprise agreement provided for terms and conditions that were better off overall for the employees than the applicable awards and whether it disadvantaged any employee who was not party to the agreement. The court also needed to assess if the agreement was in compliance with the relevant sections of the Fair Work Act and if it adhered to the good faith bargaining principle.

The court examined the submissions and evidence provided by both parties, focusing on the financial implications of the proposed agreement and its impact on the employees. It found that the agreement did indeed offer terms and conditions that were better off overall for the employees, as it provided for increases in pay and other benefits. The court also concluded that the agreement did not disadvantage any employee who was not a party to it and that it complied with the relevant statutory requirements. The good faith bargaining principle was upheld, as both parties had engaged in meaningful negotiations to reach the agreement. Based on these findings, the court approved the enterprise agreement.

Whitehaven Coal Mining Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established