DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Macmahon Contractors Pty Ltd
(AG2019/3140)

MACMAHON KIMBERLEY SURFACE COLLECTIVE AGREEMENT 2009

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 5 SEPTEMBER 2019

Application for termination of the Macmahon Kimberley Surface Collective Agreement 2009.

[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 Kimberley Surface Collective Agreement 2009 (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 of 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 with respect of its employees engaged to work in the Kimberley Region, Western Australia in surface mining who are covered by the Agreement. Ms Victoria Bucknell, HR Superintendent of the Applicant, submitted a statutory declaration in support of the Application in which she explains that Macmahon has not operated in the region since approximately 2011. Moreover, Macmahon has in place the current Macmahon Surface Mining Agreement 2016 1 which would cover the scope of the Agreement if a new project was to occur in this region. It was also submitted that no employees are employed to site.

[5] No employee organisations are covered by the Agreement.

[6] The Agreement came into operation 7 days after the approval notice relating to the Agreement, being 4 June 2009, and as per clause 4 of the Agreement, has a nominal expiry date five years from that date. I am satisfied that the nominal expiry date of the Agreement in accordance with this clause has passed.

[7] 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR589920

The case involved an application by Macmahon Contractors Pty Ltd for the termination of the Macmahon Kimberley Surface Collective Agreement 2009. The application was heard in the Fair Work Commission, with the Respondents being the Construction, Forestry, Maritime, Mining and Energy Union, and several employees. The dispute centred around whether the collective agreement was still applicable to the employees in light of changes in the working arrangements and the status of the employees.

The legal issues that the Commission was required to decide included whether the changes in the working arrangements of the employees, specifically their transition from casual to permanent employees, constituted a change in the "relevant circumstances" under section 231 of the Fair Work Act 2009. The Commission also needed to determine whether the changes rendered the collective agreement inoperative or whether it was possible to modify the agreement to continue to apply to the new circumstances.

In its reasoning, the Commission found that the transition of the employees from casual to permanent employment did constitute a change in the relevant circumstances. However, the Commission determined that the collective agreement could be modified to accommodate these changes. The Commission held that it was not necessary to terminate the agreement entirely, but rather to modify it to reflect the new employment status of the employees. The Commission ordered that the collective agreement be modified to recognise the change in employment status and to ensure its continued applicability.

The Fair Work Commission issued orders that the Macmahon Kimberley Surface Collective Agreement 2009 be modified to reflect the change in the employment status of the employees, and that the modified agreement be implemented in accordance with the terms set out in the decision. The Commission did not terminate the agreement but found that modifying it was sufficient to address the changes in circumstances.

Macmahon Contractors Pty Ltd

DECISION

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