[1] OS MCAP Pty Ltd ("the Employer") has applied for approval of an enterprise agreement known as Operations Services Production Agreement ("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] There is a minor discrepancy as between the Notice of Employee Representational Rights, and the Agreement as made, as to the Agreement's title. For the purposes of subsection 188(5) I am satisfied that this was a minor technical error and not likely to disadvantage any employees in the circumstances.

[3] The Agreement provides that the model consultation term prescribed in accordance with section 205(3) of the Fair Work Act, as amended from time to time, applies. I was not taken to any authorities for the proposition that incorporation by reference is sufficient to meet the requirements of section 205 of the Fair Work Act. I do not consider incorporation by reference is sufficient for compliance with this provision as it requires that the consultation term must be included in the Agreement. Accordingly, I consider the Agreement is not compliant with section 205 of the Fair Work Act. Pursuant to section 205(2) and item 107 of Schedule 1 of the Fair Work Act, the model consultation term prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

[4] The Commission sought submissions as to the definition of "shiftworker" in the Agreement. The Employer submitted and I accept that all employees covered by the Agreement who are shiftworkers under the Black Coal Mining Industry Award and the Mining Industry Award are also defined by the Agreement as shiftworkers for the purposes of the National Employment Standards as required by section 196 of the Fair Work Act.

[5] Noting clause 3.3 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.

[6] The Commission invited submissions as to the Better off overall test, including in relation to the annualised salaries provided for in the Agreement, and the minimum salaries for new rosters if introduced. I consider the pay rates under the Agreement to be high enough such that employees are better off overall notwithstanding the absence of any reconciliation mechanism in relation to the annualised salaries compared with the rates payable under the Award. I make the same finding in relation to the minimum salaries for new rosters, if introduced, under the Agreement.

[7] In addition to these matters the Mining and Energy Union ("MEU") raised other concerns in relation to the Better off overall test. The Employer has addressed the MEU's concerns by providing the undertakings referred to below.

[8] The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that each undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. Each undertaking is taken to be a term of the Agreement.

[9] With the undertakings now given, 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, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

[10] 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:

• The Australian Workers' Union (AWU); and

• Mining and Energy Union (MEU).

[11] 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.

[12] 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 20 August 2029.

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