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[8]
austlii:cth/FWCA/2025/1053
General information, not legal advice.
FWCA
2025-03-26
Original judgment source is linked above.
s 185 - Enterprise agreement
SRG GLOBAL MINING (AUSTRALIA) PTY LTD WA & NT ENTERPRISE AGREEMENT 2025
Application for approval of the SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2025.
[1] SRG Global Mining (Australia) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.
[3] The title of the Agreement on the Notice of Employee Representational Rights (the NERR) is "SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2024" whilst the Agreement title in clause 1 is "SRG Global Mining (Australia) Pty Ltd WA & NT Enterprise Agreement 2025". Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.
[4] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
[5] In compliance with s 190(4) of the Act, the bargaining representatives' views regarding the undertakings proffered were sought. They were provided with the opportunity to object to the undertakings proffered by the Applicant. No objection was raised.
[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
[7] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):
(a) Clause 22.4 provides for casual conversion for an employee who 'has in the preceding period of twelve (12) months worked a pattern of hours on an ongoing basis which, without significant adjustment, the Employee could continue to perform as a Full-Time Employee or Part Time Employee'. This may be inconsistent with s 66B(1)(b) of the Act which requires casuals to be engaged for 12 months, but only required the employee to have worked a regular pattern of hours for the last six months.
(b) Clause 26 does not specifically provide that employees deemed to have abandoned their employment in accordance with this clause will be afforded their minimum notice of termination entitlement as per s 117(3) of the Act. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s 117 of the Act.
(c) Clause 38.3 states that Employees are expected to work on public holidays that fall within the rostered hours that they would normally work on that day, unless notified otherwise. This may be inconsistent with s 114 of the Act which provides that an employee is entitled to be absent from his or her employment on a day or part day that is a public holiday, unless the request to work is reasonable.
(d) Clause 39.1 appears to be silent on the ability to take compassionate leave in cases of stillbirth or miscarriage as provided by s 104 of the Act.
[8] However, I am satisfied that under clause 2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[9] The Agreement was approved on 26 March 2025 and, in accordance with s 54, will operate from 2 April 2025. The nominal expiry date of the Agreement is 26 March 2029.
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