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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Federal Court of Australia was brought by Hail Creek Coal Pty Ltd, trading as Hail Creek Open Cut, seeking termination of the Hail Creek Agreement 2007. This agreement was entered into between Hail Creek Coal and the Office of the Registrar of Aboriginal Land Commissions under the Aboriginal Land Rights (Northern Territory) Act 1976. The application arose from ongoing disputes regarding the compliance and implementation of the agreement.

The central legal issues revolved around whether Hail Creek Coal had breached the terms of the Hail Creek Agreement 2007, and if so, whether the breaches were severe enough to warrant termination of the agreement. The court had to consider the specific obligations imposed on Hail Creek Coal by the agreement, the nature and extent of the alleged breaches, and the remedies available under the relevant legislation. A key issue was whether the breaches were material enough to justify termination or if they could be resolved through other means, such as mediation or negotiated settlements.

In delivering its judgment, the court carefully examined the terms of the agreement and the evidence presented regarding the alleged breaches. The court noted that while there were instances of non-compliance, these did not necessarily rise to the level of material breaches that would justify termination of the agreement. The court emphasised the importance of considering the overall purpose of the agreement, which was to facilitate the protection and management of Aboriginal land, and the possibility of resolving disputes through continued dialogue and negotiation. Consequently, the court decided that termination was not warranted at that time and instead ordered the parties to engage in further discussions to address the outstanding issues. The court also mandated specific steps to be taken by Hail Creek Coal to ensure compliance with the agreement going forward.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established