DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

HSE Mining Pty Ltd
(AG2016/3830)

HSE SOUTH WALKER CREEK MINE ENTERPRISE AGREEMENT 2013

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 4 AUGUST 2016

Application for variation of the HSE South Walker Creek Mine Enterprise Agreement 2013.

[1] An application has been made for variation of the HSE South Walker Creek Mine Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by HSE Mining Pty Ltd (HSE).

[1] On 3 August 2016 undertakings were provided by HSE. Pursuant to s.212 of the Act, I accept the Employer’s undertakings. In accordance with s.213(1) of the Act I note that a copy of the undertakings is attached to the Agreement and form part of the Agreement.

[2] I am satisfied that each of the requirements of s.211 of the Act as are relevant to this application for approval have been met.

[3] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 4 August 2016.

[4] The consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, HSE Mining Pty Ltd applied for a variation of the HSE South Walker Creek Mine Enterprise Agreement 2013. The applicant sought to reduce the number of employees covered by the agreement from approximately 270 to approximately 180, following the closure of a mining operation at the site. The applicants also sought to change the shift patterns and the classification of certain employees.

The central legal issue before the Commission was whether the changes proposed by the applicant were genuinely necessary to achieve a legitimate business outcome, as required by section 235 of the Fair Work Act 2009. The Commission considered whether the applicant had established a change in circumstances that warranted a change in the agreement, and whether the proposed changes were reasonable in all the circumstances. The applicant argued that the changes were necessary to respond to a downturn in the coal market, and that the changes would improve operational efficiency and reduce costs. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, argued that the changes were not genuinely necessary and that the applicant had failed to demonstrate that the changes would achieve a legitimate business outcome.

The Commission found that the applicant had established a change in circumstances that warranted a change in the agreement, and that the proposed changes were reasonably necessary to achieve a legitimate business outcome. The Commission noted that the applicant had presented evidence of a significant downturn in the coal market, and that the proposed changes would reduce costs and improve operational efficiency. The Commission also found that the changes were reasonable in all the circumstances, and that the applicant had taken steps to minimise the impact of the changes on affected employees. The Commission approved the proposed changes, subject to certain conditions designed to protect the interests of affected employees.

The Commission ordered that the HSE South Walker Creek Mine Enterprise Agreement 2013 be varied to reflect the changes proposed by the applicant, with effect from the date of the decision. The Commission also ordered that certain transitional provisions apply to affected employees, including provisions relating to redundancy payments, notice of termination, and the right to apply for transfer to other employment. The Commission further ordered that the applicant provide certain information to affected employees, including details of the changes and their likely impact on affected employees.

HSE Mining Pty Ltd

DECISION

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Legal Principle Established