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

[2] A party's application for the Commission's approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least one representative of the employees covered by the agreement, and it includes each signatory's full name and address, and an explanation of their authority to sign.[2] I sought submissions as to one of the signatory's authority to sign. The Employer confirmed the signatory is an employee and signed as a representative of employees.

[3] To the extent necessary to do so, I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the signatory's explanation of their authority to sign the Agreement.

[4] Noting clause 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] I sought submissions as to the application of the Better Off Overall Test in relation to casuals employed under the Agreement, given the Black Coal Mining Industry Award 2020 does not provide for casual employment of production and engineering employees. The Employer submitted the appropriate comparator is a full-time or part-time employee who does not receive casual loading, and relied upon the decisions in Ipsum Mining Pty Ltd[4] and Mining Pro Services Pty Ltd[5] in that regard. I accept this submission.

[6] I also sought submissions as to whether the rates for casuals are loaded rates, and if so whether the Agreement passed the Better Off Overall Test in light of the decision in Loaded Rates in Agreements.[6] The Employer submitted that the rates in the Agreement are not true loaded rates since they include the variable Roster Allowance which reflects the loadings and penalties of the roster worked by each casual. It also submitted that the issue of loaded rates for casuals in the mining industry has been considered in many cases, including CoreStaff NSW Pty Ltd t/a Corestaff NSW.[7] I accept these submissions.

[7] 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.

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

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

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

• Mining and Energy Union (MEU).

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

[10] The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 12 June 2029.

[1] Fair Work Act 2009 s 185(2)(a).

[2] Fair Work Act 2009 s 185(5) and Fair Work Regulations 2009 (Cth) r 2.06A.

[3] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.) [2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717, [40]-[46].

[4] [2021] FWCA 3672.

[5] [2022] FWCA 499.

[6] [2018] FWCFB 3610.

[7] [2019] FWCA 4403.

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