HSE Mining Pty Ltd (“HSE”)

[2024] FWCA 3595

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009

s.225—Enterprise agreement

HSE Mining Pty Ltd (“HSE”)

(AG2024/3859)

Black coal mining
DEPUTY PRESIDENT LAKE	BRISBANE, 15 OCTOBER 2024

Application for termination of the HSE Mining Pty Ltd Saraji Enterprise Agreement 2015 – correction to decision – paragraph [4] and paragraph [6]

The decision issued by the Fair Work Commission on 14 October 2024 [[2024] FWCA 3595] is corrected as follows:

By adding a final sentence to paragraph [4] as follows:

“The MEU was also served with a copy of the Application and Statutory Declarations when it was filed by the Applicant.”

By inserting paragraph [6] as follows:

“I note s.226(1)(b) of the Act requires the Commission to terminate the Agreement if the Agreement does not, and is not likely to, cover any employees. I am satisfied, based the Applicant’s Form 24C Statutory Declaration, that there are no employees covered by the Agreement, or likely to be covered by the Agreement.”

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was presented with an application by HSE Mining Pty Ltd to terminate the Saraji Enterprise Agreement 2015. The application was made under section 225 of the Fair Work Act 2009, which allows for the termination of an enterprise agreement if it does not or is not likely to cover any employees. The dispute centred on whether the Agreement indeed failed to cover any employees, thereby justifying its termination. The decision was subsequently corrected to include additional details about the service of documents and the basis for the termination decision.

The primary legal issue before the Deputy President was whether the enterprise agreement in question covered any employees or was likely to cover any employees in the future. This determination was crucial under section 226(1)(b) of the Act, which mandates the termination of an agreement if it does not, and is not likely to, cover any employees. The application hinged on whether the statutory declarations provided by HSE Mining Pty Ltd sufficiently demonstrated the absence of covered employees.

The Deputy President reviewed the statutory declarations and other evidence presented by HSE Mining Pty Ltd. It was noted that the Mining and Energy Union (MEU), which had been a party to the original Agreement, was served with a copy of the application and related statutory declarations. Based on the evidence provided, the Deputy President found that there were no employees currently covered by the Agreement and that it was unlikely that any employees would be covered in the future. Consequently, the Deputy President was satisfied that the agreement did not and was not likely to cover any employees, fulfilling the criteria for termination under section 226(1)(b) of the Act.

The Fair Work Commission issued a corrected decision, reflecting the additional information regarding the service of documents and the basis for the termination decision. The correction specified that the MEU was served with the application and statutory declarations, and it added a new paragraph affirming the Deputy President's satisfaction that the Agreement did not cover any employees and was unlikely to do so in the future. The Agreement was terminated as a result of this decision.

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