HSE Mining Pty Ltd (“HSE”)

[2024] FWC 2788

[2024] FWC 2788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

HSE Mining Pty Ltd (“HSE”)

(AG2024/3859)

Black coal mining
DEPUTY PRESIDENT LAKE	BRISBANE, 14 OCTOBER 2024

Application for termination of the HSE Mining Pty Ltd Saraji Enterprise Agreement 2015

1. On 2 October 2024, HSE Mining Pty Ltd (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the HSE Mining Pty Ltd Saraji Enterprise Agreement 2015 (the Agreement). The Agreement has passed its nominal expiry date of 6 October 2018.

1. Section 225 of the Act provides:

“225    Application of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)   one or more of the employers covered by the agreement;

(b)   an employee covered by the agreement;

(c)   an employee organisation covered by the agreement.”

1. Section 226 of the Act provides:

“226    Terminating an enterprise agreement after its nominal expiry date

(1) If an application for the termination of an enterprise agreement is made under section 223, the FWC must terminate the agreement if:

(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The Construction, Forestry, Mining and Energy Union was covered by the Agreement as an employee organisation under s.201(2) of the Act. The Construction, Forestry, Mining and Energy Union has been succeeded by the Mining and Energy Union – Qld District (MEU).

1. The Applicant has submitted a Form 24C Statutory Declaration stating that there are no employees covered by the Agreement, or likely to be covered by the Agreement. The Applicant submits that the Agreement should be terminated because the Applicant no longer has any operations at or near the Saraji mine site.

1. The MEU was asked by my Chambers to advise the Commission by close of business, 9 October 2024 whether it objects to terminating the Agreement. The MEU has not responded with any objections.

1. On the basis of the information above, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement pursuant to s.226(1A).

1. Therefore, the Agreement is terminated and pursuant to s.227, the termination will operate from the date of this decision.

DEPUTY PRESIDENT

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