Application for approval of the Cadia Operations Enterprise Agreement 2025

[1] Newcrest Mining Limited (Newcrest) has applied for approval of a single enterprise agreement known as the Cadia Operations Enterprise Agreement 2025 (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). The Australian Workers' Union (AWU) and the Mining and Energy Union (MEU) were bargaining representatives for the Agreement although were not involved in bargaining. Each has notified the Commission that they wish to be covered by the Agreement.

[2] The AWU has decided not to advise the Commission of whether it supports or opposes approval. The MEU supports approval of the Agreement. Both unions agree that the Agreement passes the better off overall test but have raised issues for the consideration of the Commission in relation to its approval.

[3] Firstly, the AWU expresses a concern about whether clause 19 of the Agreement excludes the National Employment Standards (NES) in relation to absence for work on public holidays (although the concern is expressed as one relating to the better off overall test). The MEU raises a similar issue about whether public holiday terms in the Agreement exclude the NES. The concerns are misconceived when considered against the definition of 'base salary' in the Agreement (which includes a component for public holidays), and the effect of clause 19.6 (including provision for employees to refuse a request to work on a public holiday if the refusal is reasonable).

[4] On a plain reading, the Agreement does not exclude the NES in these respects. Any doubt in that regard is overcome by clauses 2.6 and 2.7 of the Agreement, which recognise the NES as the minimum entitlements in the Agreement and provide that the Agreement will be read and interpreted in conjunction with the NES. Where there is inconsistency between the Agreement and NES and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

[5] Further, and to the extent that employees are said not to be better off overall under the Agreement in connection with work on public holidays, any potential detriment in relation to payment for public holidays is outweighed by more beneficial rates of pay and other terms of the Agreement when compared with those that would operate if the Mining Industry Award 2020 (Award) applied to employees.

[6] Secondly, the AWU and MEU have expressed concerns (and AWU proposes that Newcrest give an undertaking) in relation to clause 4.8 of the Agreement, which provides for a review of base salary if an employee's roster or hours of work is changed. The purpose of the review is to ensure that employees remain better off overall compared to the Award. Employees can request a copy of calculations from any such review if the change to their roster or hours of work is significant. Clause 4.8 supplements s.206 of the Act and clause 17 of the Award by requiring Newcrest to take positive steps to ensure employees are always better off under the Agreement in relation to their base salary (including by reviewing and adjusting their salaries as appropriate).

[7] The AWU's proposed undertaking is that calculations from salary reviews will be provided after each change, whether significant or not. There is no equivalent requirement in the Award, and no suggestion that clause 4.8 has not been genuinely agreed to by employees.

[8] I am not concerned that clause 4.8 operates as an impediment to approval of the Agreement in its present form. It must be read in the context of terms of the Agreement as a whole, including base salary provisions that are significantly more generous (by a margin of 74.17% - 184.59%) than the Award. 'Base salary' in the Agreement is an inflated rate that includes all rostered hours worked at ordinary rates and overtimes, penalties, loadings and all other allowances or payments including payment for public holidays. Similar reviews of base salary are required on an annual basis by clause 15.5 of the Agreement. The Agreement's higher rates of pay make it unlikely that roster changes or different working hours will have the effect that an employee will not be better off in salary terms if insignificant changes to their roster or hours of work are made.

[9] Finally, the requirement for consultation about changes to rosters or hours of work or in connection with individual flexibility arrangements includes obligations to provide information in writing to affected employees about the change.

[10] It follows that no undertaking could be given to address the concern.

[11] On the papers and having regard to the Statement of Principles,[1] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Fair Work Act 2009 as are relevant to this application for approval have been met.

[12] The Agreement is approved and will operate from 2 September 2025. The nominal expiry date of the Agreement is 26 August 2029.

[13] The Agreement covers the MEU and the AWU.

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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