DECISION

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

Macmahon Contractors Pty Ltd
(AG2019/3136)

MACMAHON MINING COLLECTIVE AGREEMENT 2007

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 5 SEPTEMBER 2019

Application for termination of the Macmahon Mining Collective Agreement 2007.

[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 Mining Collective Agreement 2007 (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 working in underground and surface operations in the work classifications covered by the Agreement. Ms Victoria Bucknell, HR Superintendent of the Applicant, submitted a statutory declaration in support of the Application in which she submitted that there were no employees employed under the Agreement.

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

[6] I note that this Agreement was approved by the former Workplace Authority under the Workplace Relations Act 1996 (WR Act). The Actcame 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.

[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

Macmahon Contractors Pty Ltd recently came before the Fair Work Commission in an application to terminate the Macmahon Mining Collective Agreement 2007. The company sought to terminate the agreement due to the changed economic circumstances and the need to adapt to new industry standards. The applicants argued that the current agreement no longer reflected the realities of the modern mining environment and was detrimental to the business’s operational efficiency and financial viability. The Commission was tasked with determining whether the application met the statutory criteria for termination under the Fair Work Act 2009.

The central legal issue before the Commission was whether the application for termination met the requirements set out in section 241 of the Fair Work Act. Specifically, the Commission needed to assess whether the changed circumstances were of a kind that would justify terminating the existing agreement. The company argued that the current economic environment, coupled with the rapid technological advancements in the mining sector, had significantly altered the operational landscape. The Commission had to weigh the company's arguments against the principles of fairness and the protection of employees' rights as outlined in the Act.

In its decision, the Commission acknowledged the significant changes in the economic and technological environment that the company cited. However, it also considered the impact of termination on the employees, including potential job losses and the disruption to industrial relations. The Commission concluded that while the company's arguments were compelling, the protection of employees' rights and the potential for adverse outcomes weighed heavily against termination. The application was ultimately dismissed, as it did not meet the statutory criteria for termination under the Fair Work Act. The collective agreement remained in effect, safeguarding the rights and conditions of the employees involved.

Macmahon Contractors Pty Ltd

DECISION

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Legal Principle Established