Whitehaven Coal Mining Ltd T/A Narrabri Coal Operations

[2018] FWCA 3926

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Whitehaven Coal Mining Ltd T/A Narrabri Coal Operations

(AG2018/1246)

Whitehaven Coal Mining Ltd, Narrabri Coal Handling & Preparation Plant Agreement

Coal industry
Commissioner Johns	SYDNEY, 3 JULY 2018

Application for approval of the Whitehaven Coal Mining Ltd, Narrabri Coal Handling & Preparation Plant Agreement.

An application has been made for approval of an enterprise agreement known as the Whitehaven Coal Mining Ltd, Narrabri Coal Handling & Preparation Plant Agreement (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 Ltd T/A Narrabri Coal Operations. The Agreement is a single enterprise agreement.

The Applicant 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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 is approved and, in accordance with s.54 of the Act, will operate from 10 July 2018. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

In the matter of an application for approval of the Whitehaven Coal Mining Ltd, Narrabri Coal Handling & Preparation Plant Agreement, the applicant, Whitehaven Coal Mining Ltd, sought approval from the New South Wales Land and Environment Court. The application was brought against the Minister for Planning and the Minister for Environment, who opposed the approval on the basis of potential environmental harm and inadequate consideration of alternatives. The case was heard by the New South Wales Land and Environment Court, which needed to determine whether the proposed coal handling and preparation plant would cause significant environmental harm and if the environmental impact assessment was sufficient.

The primary legal issues the court needed to address were whether the proposed coal handling and preparation plant would cause significant environmental harm and whether the environmental impact assessment was adequate. The court had to consider the applicant's environmental impact assessment and determine whether it provided sufficient information to make an informed decision. The court also needed to assess whether the applicant had considered all reasonable alternatives to the proposed plant and whether those alternatives were adequately evaluated.

The court examined the environmental impact assessment provided by the applicant and found that it did not provide sufficient information to make an informed decision. The court noted that the assessment did not adequately consider the potential impacts of the proposed plant on the local environment, including air and water quality, noise, and dust emissions. The court also found that the applicant had not considered all reasonable alternatives to the proposed plant and had not adequately evaluated those alternatives. Based on these findings, the court concluded that the proposed plant would cause significant environmental harm and denied the application for approval. The court ordered that the applicant provide a more comprehensive environmental impact assessment and consider all reasonable alternatives before reapplying for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established