Clarence Coal Pty Limited

[2023] FWCA 2092

[2023] FWCA 2092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Clarence Coal Pty Limited

(AG2023/2219)

CLARENCE COLLIERY DEPUTY ENTERPRISE AGREEMENT 2021

Coal industry
DEPUTY PRESIDENT EASTON	SYDNEY, 7 JULY 2023

Application for termination of the Clarence Colliery Deputy Enterprise Agreement 2021.

1. Clarence Coal Pty Limited (the Employer) made an application for approval of the Clarence Colliery Deputy Enterprise Agreement 2023 (“the 2023 Agreement”) [[2023] FWCA 2093, PR764030] and also for the termination of the Clarence Colliery Deputy Enterprise Agreement 2021 (“the 2021 Agreement”). This decision deals with the application for the termination of the 2021 Agreement.

1. The Applicant relies upon a declaration of Mr Scott Ambrose, Executive General Manager Corporate Services of Clarence Coal Pty Limited.

1. In his statement, Mr Ambrose said that in early 2023 the Employer was approached by representatives of the Employees to discuss the perceived inadequacy of the monetary compensation provided in the 2021 Agreement and the prospect of negotiating a replacement enterprise agreement prior to the nominal expiry date of 1 April 2024.

1. The Employer and the Employee Bargaining Representatives proceeded to bargain in good faith and reach agreement on the terms of a new enterprise agreement (the 2023 Agreement).

1. On 1 and 2 June 2023 the Employer’s Mine Manager provided details to employees regarding the proposed termination of the 2021 Agreement. The proposal put to the employees was that the termination of the 2021 Agreement would operate upon the commencement of a new agreement. A copy of the presentation was provided to the Commission.

1. Section 223 of the Fair Work Act 2009 (Cth) (“the Act”) requires that the FWC to approve the termination of an agreement if certain conditions apply:

“223      When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a)  the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b)  the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c)  the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)  the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

1. Section 223(a) requires that I be satisfied that Clarence Coal has complied with s.220(2)(b) of the Act. Mr Ambrose’s declaration provides that on 19 and 20 June 2023 the Employer’s Mine Manager wrote to all employees providing information regarding the proposed termination of the 2021 Agreement and the effect that it would have on employees. The employees were encouraged to discuss any questions they had with himself or the District Union Representatives. The letter was also posted on notice boards, in the Deputy office and meeting room as well as electronically by email to each employee covered by the 2021 Agreement.

1. On 19 June 2023 copies of the letter confirming the details of voting times, location and method were posted on notice boards and in the Deputies’ office and Deputy meeting room. On 20 June 2023 employees were provided electronic copies of the letter by email confirming the details of the voting times, location and method of the vote. The vote commenced on 22 June 2023 and the termination was agreed to on 23 June 2023.

1. Of the 25 employees who were covered by the 2021 Agreement, 16 votes were cast. 13 employees voted to approve the termination of the Agreement. Accordingly, I am satisfied that the termination was agreed to by a majority in accordance with s.221(1) and s.223(b).

1. There are no other reasonable grounds for considering that the employees have not agreed to the termination (per s.223(c)). Upon termination of the 2021 Agreement, the employees will be covered by the Clarence Colliery Deputy Enterprise Agreement 2023.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) were invited to provide any views on whether it is appropriate to approve the termination of the 2021 Agreement (per s.223(d)). The CFMMEU and APESMA confirmed that they support the termination of the Clarence Colliery Deputy Enterprise Agreement 2021.

1. Having considered the requirements of s.223 of the Act, the termination of the 2021 Agreement is approved. The termination of the 2021 Agreement will operate from 14 July 2023.

1. In accordance with s.224 of the Act, the decision will come into effect from 14 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE510892 PR764029>