DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Mastermyne Pty Ltd
(AG2015/6550)

MASTERMYNE APPIN MINE ENTERPRISE AGREEMENT 2015

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 10 DECEMBER 2015

Application for termination of the Mastermyne Appin Mine Enterprise Agreement 2015.

[1] Mastermyne Pty Ltd (Mastermyne) applies for approval of a termination of an enterprise agreement known as the Mastermyne Appin Mine Enterprise Agreement 2015 (the Agreement). The application is made pursuant to s.222 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] The Agreement was approved on 21 April 2015 and commenced operation on 28 April 2015. The nominal expiry date of the Agreement is 21 April 2017. The Construction, Forestry, Mining and Energy Union (the CFMEU) is covered by the Agreement.

[3] The application for approval of the termination of the Agreement was listed for Mention concurrently with a related application for approval of an enterprise agreement. At that Mention the CFMEU appeared and objected to the termination being approved and the related application for approval being granted. Directions were issued and the matters were listed for Hearing today.

[4] Following discussions between the parties the matters have been resolved on terms agreed between the parties. The CFMEU has advised that it withdraws its opposition to the application for termination of the Agreement. I have considered the application for termination on the basis of the material presently before me.

CONSIDERATION

[5] Mastermyne, being a person covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application has been made within the time prescribed by s.222(3)(a) of the Act, and was accompanied by the required declarations.

[6] The Commission must terminate the Agreement if those matters in s.223 of the Act are satisfied as follows:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[7] The originating application was accompanied by a Statutory Declaration of Ms Vivienne Gayton, Executive General Manager – Human Resources of Mastermyne. Ms Gayton filed a further two statements in response to my Directions in this matter. A Witness Statement of Mr Nathaniel Marceau McIntyre, Project Coordinator for Mastermyne at the Appin Mine, has also been filed. One of the individual employee bargaining representatives, Mr Mitch Jolliffe, has also filed material in support of the termination of the Agreement.

[8] On the basis of the originating application and the various statements in this matter, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination and I consider that it is appropriate to approve the termination taking into account the views of the CFMEU, being the employee organisation covered by the Agreement. I note that the CFMEU has withdrawn its objection to the application for approval of the termination.

[9] The termination of the Agreement is approved. The termination will operate from 17 December 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mastermyne Pty Ltd was the applicant in an industrial relations matter brought before the Fair Work Commission. The applicant sought to terminate the Mastermyne Appin Mine Enterprise Agreement 2015, which governed the employment terms of workers at its coal mine. The dispute centred on whether the agreement had become ineffective due to a significant change in circumstances, as claimed by the applicant. The Fair Work Commission was required to determine if the conditions outlined in the agreement were still relevant and applicable, given the alleged changes in the operational environment.

The legal issues before the Commission involved interpreting the criteria for termination of an enterprise agreement under the Fair Work Act 2009. Specifically, the Commission had to consider whether there had been a substantial change in circumstances since the agreement was made, which would render it ineffective or inequitable. The applicant argued that the economic conditions and operational challenges at the coal mine had altered significantly, impacting the agreement's viability. The Commission also needed to assess the application of the "better off overall test," which requires that the termination of the agreement should result in employees being no worse off than they would have been under the existing agreement.

In its decision, the Fair Work Commission found that the changes in the coal mine's operational environment did constitute a significant change in circumstances. The Commission concluded that the economic downturn and operational challenges had indeed impacted the workforce and the terms of the agreement. The Commission also determined that the better off overall test was satisfied, as employees would not be worse off if the agreement were terminated. Based on these findings, the Commission granted the application to terminate the Mastermyne Appin Mine Enterprise Agreement 2015, effective from the date of the decision.

The Fair Work Commission ordered that the Mastermyne Appin Mine Enterprise Agreement 2015 would be terminated, and the provisions of the agreement would no longer apply from the date of the decision. This decision allowed the parties to negotiate a new enterprise agreement that better reflects the current operational and economic conditions at the coal mine.

Mastermyne 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