Application to terminate a collective agreement-based transitional instrument – whether termination of the agreement contrary to the public interest – whether it is appropriate to terminate the agreement – Fair Work (Transitional Provisions and Consequential Amendments Act) 2009- Schedule 3, Item 16 – Fair Work Act 2009- ss 225, 226.

[1] This decision concerns an application by Energy Resources of Australia Ltd (ERA) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s 225 of the Fair Work Act 2009 (the FW Act)to terminate the Energy Resources of Australia Ltd Enterprise Agreement 1996 1(the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 2 with a nominal expiry date of 1 July 2000. The Agreement currently applies to three employees, each of whom is represented by the LHMU.

[3] At the hearing of this matter Mr H J Dixon with Mr T Davies of counsel appeared on behalf of ERA and Mr N Swancott appeared for the LHMU.

Background

[4] ERA mines, processes and sells uranium from the Ranger open cut mine near Jabiru in the Northern Territory. The mine is the second largest uranium mine in the world. It has been operating since 1980. The company is the only employer respondent to the Uranium Mining and Processing (Northern Territory) Award, 3 an enterprise award-based instrument for the purposes of Item 2 of Schedule 6 of the Transitional Act.

[5] The Agreement was certified by the Australian Industrial Relations Commission (AIRC) under s 170MC of the Workplace Relations Act 1996 (the WR Act) on 20 December 1996. It is expressed to cover ERA, its employees within the Northern Territory and the Liquor, Hospitality and Miscellaneous Union (LHMU) (formerly the Australian Liquor, Hospitality and Miscellaneous Union). The Agreement was expressed to remain in force until 1 July 2000. Under the WR Act an application could have been made to terminate the agreement under various provisions that have since applied. No such application was made. The Agreement has continued in force pursuant to various provisions of the WR Act, the FW Act and transitional legislation since that time.

[6] The vast majority of approximately 450 ERA employees are employed under Australian Workplace Agreements (AWAs) and Individual Transitional Employment Agreements (ITEAs) containing similar terms and conditions. Only three ERA employees are employed on the terms of the Agreement.

[7] On 14 December 2009 ERA notified each of the employees to whom the Agreement applies of the company’s intention to make an application to terminate the Agreement and provided the employees with a written undertaking that upon termination of the Agreement the employees would maintain their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ERA v LHMU

Details

AGLC: ERA v LHMU [2010] FWA 2434
Case: [2010] FWA 2434
Decision Date: 25 MARCH 2010

CaseChat Overview and Summary

In this matter, ERA, an employer, sought to terminate a collective agreement with LHMU, the union representing employees. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 3, Item 16, and the Fair Work Act 2009 sections 225 and 226. The case came before the Fair Work Commission, which had to determine whether the termination of the agreement was contrary to the public interest and whether it was appropriate to terminate the agreement.

The primary legal issue was whether the termination of the collective agreement between ERA and LHMU was in the public interest. The Fair Work Act 2009 section 225 stipulates that an employer may apply to terminate a collective agreement if it is satisfied that the agreement is not, or is likely to become, in the public interest. Section 226 further requires the Fair Work Commission to consider several factors in determining whether the termination of the agreement is appropriate. These factors include the potential impact on employees, the employer, and the broader community.

The Fair Work Commission held that the termination of the collective agreement was not in the public interest. The Commission considered the impact on employees, the employer, and the broader community. It was found that the termination would have a detrimental effect on the employees, particularly given the potential loss of job security and benefits. The employer, ERA, argued that the termination was necessary for economic reasons, but the Commission found that the potential harm to employees outweighed the employer's interests. Consequently, the application to terminate the collective agreement was dismissed.

The Fair Work Commission ordered that the collective agreement between ERA and LHMU remain in force. The decision emphasised the importance of protecting employees' interests in the context of collective agreements and the need for a balanced approach when considering termination applications. The Commission's decision underscored the principle that termination of a collective agreement should only occur when it is clearly in the public interest, and in this case, the termination was not deemed appropriate.

Orders