Whitehaven Coal Mining Ltd T/A Whitehaven
[2023] FWCA 3076
•22 SEPTEMBER 2023
| [2023] FWCA 3076 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Whitehaven Coal Mining Ltd T/A Whitehaven
(AG2023/3096)
WHITEHAVEN OPEN CUT OPERATIONS (ROCGLEN) ENTERPRISE AGREEMENT 2022
| Coal industry | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 22 SEPTEMBER 2023 |
Application for approval of the Whitehaven Open Cut Operations (Rocglen) Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Whitehaven Open Cut Operations (Rocglen) Enterprise Agreement 2022 (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 Whitehaven. The Agreement is a single enterprise agreement.
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 Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.
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. The undertakings are taken to be a term of 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 CFMMEU supports approval of the Agreement and have advised my chambers that they are of the view that the Agreement passes the better off overall test.
I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):
· Clause 33.2 – Redundancy: Suitable alternative employment.
However, noting clause 5.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 September 2023. The nominal expiry date of the Agreement is 15 May 2026.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Annexure A
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