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

Application for approval of the Broadmeadow Mine Enterprise Agreement 2025

[1] Broadmeadow Mine Services Pty Ltd ("the Employer") has applied for approval of an enterprise agreement known as Broadmeadow Mine Enterprise Agreement 2025 ("the Agreement"). The Application was made under s.185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights ("the NERR") refers to "Broadmeadow Mine Enterprise Agreement 2024" whereas the Agreement title appears to be "Broadmeadow Mine Enterprise Agreement 2025." A second version of the NERR was supplied to employees beyond the statutory period of 14 days required by s.173(3) of the Act. For the purposes of subsection 188(5) of the Fair Work Act I am satisfied that these errors, to the extent they were errors, were minor technical or procedural errors and not likely to disadvantage any employees in the circumstances.

[3] Clause 24 of the Agreement contains a delegates' rights term which contains some inconsistencies with the model term contained at clause 29A of the Black Coal Mining Industry Award 2020 ("the Award"). Clause 24.1 of the Agreement incorporates the model term in the Award, thereby accounting for omissions. There are some inconsistencies between the delegates' rights term and the corresponding provision of the Award. The Employer submits that clause 24.1 provides that where there is an inconsistency between the two instruments the more beneficial entitlement shall prevail. It submits that the Agreement is compliant with section 205A of the Fair Work Act, in its present form. I did not receive any submissions in opposition to that proposition. I accept that the Agreement contains a delegates' rights term that meets the requirements of section 205A of the Fair Work Act.

[4] Noting clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

[5] Clause 8 of the Agreement sets out entitlements for casual employees. However, these employees would not be able to be employed on a casual basis under the Award. This raises a conceptually difficult question of the type discussed in CFMEU v SESLS [2017] FWCFB 3659. Taking the approach of comparing the conditions for casuals under the Agreement with those for permanent employees under the Award, I find that the rates of pay are high enough to compensate.

[6] In light of the foregoing, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, and 188 of the Fair Work Act as are relevant to this application for approval have been met.

[7] Each of the following organisations, being a bargaining representative for the agreement, has given notice under s.183 of the Fair Work Act that it wants to be covered by the Agreement:

• (a) "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU);

(b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and

[8] In accordance with s.201(2) of the Fair Work Act, and relying on the organisations' declarations, I note that the Agreement covers each of those organisations.

[9] The Agreement is approved and will operate in accordance with s.54 of the Fair Work Act. The nominal expiry date of the Agreement is 28 May 2029.

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