Application for approval of the Airly Mine Enterprise Agreement 2025

[1] Centennial Airly Pty Limited has applied for approval of an enterprise agreement known as the Airly Mine Enterprise Agreement 2025 ("Agreement"). The application is made under section 185 of the Fair Work Act 2009 ("Act"). The Agreement is a single enterprise agreement.

[2] The Association of Professional Engineers, Scientists & Managers Australia ("APESMA") and the Mining and Energy Union ("MEU") were bargaining representatives for the Agreement. They support the approval of the Agreement.

[3] Some terms of the Agreement might be read as being inconsistent with, and less beneficial to employees than, the National Employment Standards. That is:

1. Clause 18.5 requires an employee seeking to take Personal/Carer's Leave must notify Airly Mine "prior to the commencement of any absence" and to state the estimated duration of the absence. In "extenuating circumstances", notification may be given within 24 hours of the commencement of the absence. I observe that section 107(2)(a) of the Act provides that an employee must provide notice "as soon as practicable (which may be a time after the leave has started)".

2. Clause 18.6 prescribes the proof that an employee must provide to entitle them to payment for Personal/Carer's Leave. In short, the absence must be evidenced by either a medical certificate or a statutory declaration. Section 107(3) of the Act states that the employee to provide "evidence that would satisfy a reasonable person" that the leave was taken for the specified reason.

3. Section 107(3) is also relevant to the requirement in clause 19.4 that an employee provide "satisfactory proof" to justify an absence on Compassionate Leave.

4. Clause 25.1 lists the "public holidays to be observed at the Mine". It does not anticipate additional days as may be declared or prescribed, as provided for in s 115(1)(b) of the Act.

5. Clause 25.2 allows for substitution of public holidays by agreement with a majority of employees. Section 115(3) of the Act provides for substitution by agreement between an employer and an individual employee.

6. Clause 25.9 makes payment for a public holiday conditional on the employee attending for work on their rostered shifts either side of the holiday, unless they are on an "approved absence". If the employee takes Personal/Carer's Leave on those shifts, they are required to provide a medical certificate. These restrictions are not to be found in the NES. As to the requirement for a medical certificate, I note once again section 107(3).

[4] Having raised these matters, I am mindful that clause 4.5 of the Agreement provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that the provisions to which I have referred are not applied in a manner contrary to the NES. In raising the issues, it is my intention to ensure that this is the case.

[5] Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application have been met.

[6] APESMA and the MEU have each given notice under s 183 of the Act that they want the Agreement to cover them. As required by s 201(2) of the Act, I note that the Agreement covers APESMA and the MEU.

[7] The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 3 April 2025. The nominal expiry date of the Agreement is 21 November 2028.

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