Hail Creek Coal Pty Ltd T/A Hail Creek Open Cut

[2020] FWCA 3778

[2020] FWCA 3778

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Hail Creek Coal Pty Ltd T/A Hail Creek Open Cut
(AG2020/1148)

HAIL CREEK AGREEMENT 2007

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 17 JULY 2020

Application for termination of the Hail Creek Agreement 2007.

[1] Hail Creek Coal Pty Ltd T/A Hail Creek Open Cut applies to terminate the Hail Creek Agreement 2007 under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] The Applicant relies on a statutory declaration filed by Ms Shari Barwick, Human Resources Manager for the Applicant, who states that the employees covered by the Agreement are working in technical, professional, supervisory and administrative roles, and have individual common law employment contracts which provide for superior entitlements as compared to the Agreement. Ms Barwick also states that these common law contracts are underpinned by the Black Coal Mining Industry Award 2010 (the BCMI Award) for those employees covered by Schedule B of that Award. The contractual remuneration of the employees under their common law contracts, as deposed to by Ms Barwick, exceeds the wages under the BCMI Award and will be unaffected by the termination of the Agreement.

[4] I have considered each of the matters contained in s.226 of the Act, and I am satisfied that the Agreement should be terminated. In particular I have had regard to the fact that the Agreement was made in 2007 prior to the operation of the BCMI Award. I have also had regard to the fact that the Agreement terms are less favourable than those in the BCMI Award and that if the Agreement is terminated the Award will apply to employees covered by Schedule B, to their benefit.

[5] The termination will come into effect from 17 July 2020.

DEPUTY PRESIDENT

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