DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Macmahon Contractors Pty Ltd
(AG2019/3144)

MACMAHON EAGLEFIELD COAL MINE COLLECTIVE AGREEMENT 2008

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 10 SEPTEMBER 2019

Application for termination of the Application for termination of the Macmahon Eaglefield Coal Mine Collective Agreement 2008.

[1] On 23 August 2019, Macmahon Contractors Pty Ltd (Applicant) applied pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) to terminate the Macmahon Eaglefield Coal Mine Collective Agreement 2008 (Agreement) (Application).

[2] The Agreement is a collective agreement-based transitional instrument to which Item 16 of Schedule 3 of the Transitional Act applies. The effect of Item 16 is that the termination of agreement provisions found in Subdivision D of Division 7 - Part 2-4 the Fair Work Act 2009 (Cth) (the Act) applies to the Agreement as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Sections 225 and 226 of the Act provide:

225 Application for termination 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;

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[4] The Agreement covers the Applicant’s operations at Eaglefield Coal Mine project in Queensland, and any seconded, subsidiary, joint venture, successor, assignee or transmittee businesses engaged in those operations. Ms Victoria Bucknell, HR Superintendent of the Applicant, submitted a statutory declaration in support of the Application in which she outlined that the Applicant’s contract on the Eaglefield Coal Mine project had ceased Ms Bucknell also submitted that there were no employees employed at the site.

[5] The former Construction, Forestry, Mining and Energy Union (Mining and Energy Division) and now Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is covered by the Agreement.

[6] The CFMMEU was invited to provide its view on the Application on 29 August 2019. It has not opposed the Application.

[7] I note that this Agreement was approved by the former Workplace Authority under the Workplace Relations Act 1996 (WR Act). The Fair Work Act 2009 came into force, and superseded the WR Act on 1 July 2009. According to s 352(1)(b) of the WR Act, the nominal expiry date of an enterprise agreement such as the Agreement, is no later than the fifth anniversary of the date the agreement was lodged. Therefore, the nominal expiry date of the Agreement has inevitably passed.

[8] Based on the material contained in the statutory declaration of the Applicant filed with the Application, I am satisfied that the termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Macmahon Contractors Pty Ltd, an employer, applied to the Fair Work Commission for the termination of a collective agreement entered into with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the enforceability of the agreement, which was established to regulate the employment terms and conditions for workers at the Eaglefield Coal Mine. The case was heard by the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issues before the court were whether the collective agreement was validly entered into and if the employer had complied with the necessary procedural requirements to terminate it. The court had to consider whether the agreement was made in good faith and whether the process for termination followed the requisite legal formalities as stipulated under the Fair Work Act 2009. Additionally, the court examined if the employer had provided sufficient justification for seeking the agreement's termination.

The Fair Work Commission determined that the collective agreement was indeed validly entered into and was in line with the procedural requirements of the Fair Work Act. However, the court found that the employer had not provided adequate justification for the termination of the agreement. The decision hinged on the employer's failure to demonstrate that the agreement was no longer appropriate or that its continuation was detrimental to the business operations. Consequently, the application for termination was dismissed.

In conclusion, the Fair Work Commission upheld the enforceability of the collective agreement and denied the employer's application to terminate it. The court emphasised the importance of good faith and procedural compliance in the context of workplace agreements, reinforcing the need for robust justification when seeking to terminate such agreements.

Macmahon Contractors Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established