Mastermyne Pty Ltd

[2015] FWCA 8560

[2015] FWCA 8560

FAIR WORK COMMISSION

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

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