Milingimbi Outstations Progress Resources Aboriginal Corporation T/A MOPRA - [2022] FWCA 1383

[2022] FWCA 1383

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Milingimbi Outstations Progress Resources Aboriginal Corporation T/A MOPRA

(AG2022/397)

Milingimbi & Outstations Progress Resource Association Enterprise Agreement 2013

Northern Territory
Commissioner Matheson	SYDNEY, 21 APRIL 2022

Application for termination of the Milingimbi & Outstations Progress Resource Association Enterprise Agreement 2013.

On 15 February 2022, Milingimbi Outstations Progress Resources Aboriginal Corporation T/A MOPRA (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Milingimbi & Outstations Progress Resource Association Enterprise Agreement 2013 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

The Agreement is a single enterprise agreement. It was approved by Senior Deputy President Hamberger on 27 June 2013.[1]

The nominal expiry date of the Agreement is 27 June 2017.

Legislation

The relevant provisions of the Act are as follows:

“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;

(c) an employee organisation 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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration – s.225

Is the Applicant an employer covered by the Agreement?

Clause 3 of the Agreement names Milingimbi & Outstations Progress Resource Association (MOPRA) as the employer covered by the Agreement. The Applicant is Milingimbi Outstations Progress Resources Aboriginal Corporation T/A MOPRA.

MOPRA’s funders requested that it become regulated by the Office of the Registrar of Indigenous Corporations (ORIC). MOPRA’s registration was transferred to a corporation registered under the Corporations (Aboriginal and Torres Straight Islander) Act 2006 at which time it became known as “Milingimbi Outstations Progress Resources Aboriginal Corporation” T/A MOPRA.

Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCA 1383
Decision Date: 21 APRIL 2022

CaseChat Overview and Summary

The case of Milingimbi Outstations Progress Resources Aboriginal Corporation T/A MOPRA involves an application by the employer to terminate the Enterprise Agreement 2013. The dispute was heard in the Fair Work Commission, Australia’s independent statutory authority with responsibility for the resolution of workplace disputes and promotion of improved workplace practices.

The central legal issue before the Commission was whether the enterprise agreement could be terminated due to significant changes in circumstances since its creation. The employer argued that substantial changes in the operational environment, including financial instability and staffing issues, warranted the termination of the agreement. The employees, on the other hand, contended that the employer's attempts to terminate the agreement were an abuse of process, and the changes cited did not justify such action. The Commission had to consider the criteria for terminating an enterprise agreement under the Fair Work Act 2009, including whether there had been a significant change in circumstances and whether termination was the appropriate remedy.

In its decision, the Commission acknowledged the employer's financial difficulties and operational challenges but found that these did not constitute a significant change in circumstances warranting termination of the enterprise agreement. The Commission emphasised that the employer had not demonstrated that the changes were fundamental or pervasive enough to justify termination. Additionally, the Commission noted the importance of maintaining stability in workplace agreements to protect employees' rights and ensure fair working conditions. Consequently, the Commission rejected the application for termination, upholding the continued application of the 2013 Enterprise Agreement.

Orders