Austar Coal Mine Pty Ltd Summary

[2024] FWCA 1668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Austar Coal Mine Pty Ltd

(AG2024/1388)

AUSTAR COAL MINE ENTERPRISE AGREEMENT 2019

Coal industry
COMMISSIONER CRAWFORD	SYDNEY, 6 MAY 2024

Application for termination of the Austar Coal Mine Enterprise Agreement 2019 – no employees covered or likely to be covered - agreement terminated

Austar Coal Mine Pty Limited (Austar Coal) has applied under s 225 of the Fair Work Act 2009 (FW Act) to terminate the Austar Coal Mine Enterprise Agreement 2019 (Agreement). The Agreement reached its nominal expiry date on 1 December 2021. The Agreement covers the Mining and Energy Union (MEU) following its recent de-amalgamation.

Section 225 of the Act provides that, if an enterprise agreement has passed its nominal expiry date, any of the following may apply to the Commission for the termination of the agreement: one or more of the employers covered by the agreement; an employee covered by the agreement; or an employee organisation covered by the agreement.

Section 226 of the Act states that, if an application for the termination of an enterprise agreement is made under s 225, the Commission must terminate the agreement if any of the requirements of ss 226(1)(a), (b) or (c) are met. Relevantly in the present case, the requirement of sub-section 226(1)(b) is made out if the Commission is satisfied that the agreement ‘does not, and is not likely to, cover any employees’.

Section 226(1A) provides that the Commission must terminate an agreement under s 226(1) only if it is satisfied that it is ‘appropriate in all the circumstances to do so’.

Section 226(3) states that, in deciding whether to terminate the agreement, the Commission must consider the views of any employees covered by the agreement, each employer, and each employee organisation.

Section 226(4) requires the Commission to have regard to whether the application was made at or after the notification time for a proposed enterprise that will cover the same or substantially the same group of employees as the existing agreement; whether bargaining for the proposed enterprise agreement is occurring; and whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

Section 226(5) states that in deciding whether to terminate the agreement, the Commission may also have regard to any other relevant matter.

Austar Coal’s F24C declaration, made by Amanda Farrell (Human Resources), states that there are no employees covered by the Agreement and no employees likely to be covered by the Agreement.

The MEU has advised the Commission that it does not oppose Austar Coal’s application to terminate the Agreement.

Based on the declaration of Ms Farrell, I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that the requirement of s 226(1)(b) is therefore met.

In connection with s 226(3), the view of the employer is that the Agreement should be terminated. The view of the MEU is that it does not oppose termination. There are no relevant employees.

None of the circumstances referred to in s 226(4) are present in this case. I do not consider there to be any other matters that are relevant to the question of whether it is appropriate to terminate the Agreement.

I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 6 May 2024.

COMMISSIONER

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

Austar Coal Mine Pty Limited sought to terminate its enterprise agreement with the Mining and Energy Union under section 225 of the Fair Work Act 2009. The application was brought before Commissioner Crawford of the Fair Work Commission. The Agreement in question, the Austar Coal Mine Enterprise Agreement 2019, had reached its nominal expiry date on 1 December 2021. Austar Coal submitted that there were no employees covered by the Agreement and none likely to be covered in the future, and thus sought termination under section 226 of the Act.

The Commission was required to determine whether the Agreement should be terminated, considering whether it did not, and was not likely to, cover any employees. The views of the employer, the union, and any employees were to be taken into account, alongside whether termination would affect ongoing bargaining efforts or the employees’ bargaining position. The Commission needed to assess if termination was appropriate in the circumstances.

Commissioner Crawford found that the Agreement did not, and was not likely to, cover any employees, and that the requirement of section 226(1)(b) of the Act was met. The views of the employer and the union were considered, and there were no relevant employees. The Commission also took into account the absence of any circumstances that would affect the appropriateness of termination. Commissioner Crawford was satisfied that it was appropriate to terminate the Agreement, and did so effective from 6 May 2024.

Austar Coal Mine Pty Ltd

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Background to the litigation

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Legal Principle Established