DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Macmahon Contractors Pty Ltd
(AG2018/1786)

MACMAHON EAGLEFIELD COAL MINE ENTERPRISE AGREEMENT 2011

Mining
DEPUTY PRESIDENT BEAUMONT	PERTH, 22 JUNE 2018

Application for termination of the Macmahon Eaglefield Coal Mine Enterprise Agreement 2011

[1] This decision concerns an application made by Macmahon Contractors Pty Ltd (the Applicant) on 3 May 2018 for the termination of the Macmahon Eaglefield Coal Mine Enterprise Agreement 2011 (the Agreement) made under section 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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 Applicant has provided in support of its application a statutory declaration from Ms Victoria Tice (Ms Tice) who is the HR Superintendent of the Applicant.

[5] Ms Tice explains that the Agreement had a nominal expiry date of 28 February 2015, that no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future as the Eaglefield Coal Mine contract has ended.

[6] The Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division (CFMMEU) were invited to provide its views on the Application on 8 June 2018. The CFMMEU have not opposed the application.

Consideration

[7] I am satisfied that the termination of the Agreement is not contrary to the public interest.

[8] I consider in the circumstances here it is appropriate to terminate the Agreement.
The views of the employer have been taken into account and I accept Ms Tice’s statement in her statutory declaration that there are no employees covered by the Agreement. The CFMMEU has not challenged this point.

[9] Accordingly, the Macmahon Eaglefield Coal Mine Enterprise Agreement 2011 is terminated and 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

< AE886704 PR608137 >

Macmahon Contractors Pty Ltd applied to the Fair Work Commission for termination of the Macmahon Eaglefield Coal Mine Enterprise Agreement 2011. The applicant sought to terminate the enterprise agreement due to changed circumstances, arguing that the coal mine's operational changes had rendered the agreement unworkable. The Fair Work Commission was required to determine whether the changed circumstances were sufficient to warrant the termination of the enterprise agreement.

The Fair Work Commission considered whether the changes to the coal mine's operations were significant enough to constitute a change in circumstances, and whether these changes rendered the enterprise agreement unworkable. The Commission examined the evidence presented by both parties, including expert evidence, to assess the impact of the operational changes on the agreement. The Commission also considered the implications of terminating the agreement on the employees and the employer.

After thorough consideration of the evidence and arguments, the Fair Work Commission found that the changed circumstances were indeed significant and warranted the termination of the enterprise agreement. The Commission concluded that the operational changes had rendered the agreement unworkable and that the termination was in the best interests of all parties involved. The Fair Work Commission granted the application and terminated the enterprise agreement.

The Fair Work Commission ordered that the Macmahon Eaglefield Coal Mine Enterprise Agreement 2011 be terminated, effective from a specified date. The Commission also provided for a transitional period during which certain provisions of the terminated agreement would continue to apply. The decision was made in accordance with the relevant legislation and case law, and the Commission's determination was final and binding.

Macmahon Contractors Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established