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.

1. 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.

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

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

Legislation

1. 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?

1. 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.

1. 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.

1. 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 passed its nominal expiry date?

1. Clause 4 of the Agreement provides that the Agreement will nominally expire four years after the Commission approves the Agreement, being 27 June 2017. Having considered the materials before the Commission and clause 4 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.

Consideration – s.226

Section 226(a) – Public interest

1. Section 226(a) of the Act requires the Commission to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards. The notion of public interest is distinct in nature from the interests of the parties.[2] 

1. Consideration of the public interest will involve something that is distinct from the interests of the persons and bodies covered by the Agreement.[3] Section 226(b) of the Act clearly requires the interests of the persons or bodies covered by an agreement to be taken into account and those interests are considered separately from the public interest, although these interests may nevertheless be similarly affected.

1. I do not consider that the termination of the Agreement would impact employment levels, inflation and the maintenance of proper industrial standards, particularly noting that a modern award would apply if the Agreement was terminated. I have not identified any interests in relation to the Application that are distinct in nature from the interests of the parties.

1. In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

Section 226(b) – Appropriateness

1. All of the circumstances need to be taken into account in considering whether termination of the Agreement is appropriate. “Appropriateness” is a broad discretionary standard and reasonable minds may differ on what is appropriate in any given set of circumstances.[4] In assessing appropriateness by taking into account all of the circumstances, I have given specific consideration to the matters identified in s.226(b)(i) and (ii) of the Act and I have also considered the broader contextual matters relevant to the Application.

The views of the employer covered by the agreement and its circumstances, including the likely effect that the termination will have on it

1. The Applicant is the employer covered by the Agreement and wants the Agreement to be terminated. The Applicant is reliant on external funding sources and the Applicant would like to move to the relevant modern award as its funders had made this suggestion. The Applicant’s enquiries established that the Miscellaneous Award 2020 was the modern award most likely to apply to its employees. During the hearing on 12 April 2022 the Applicant submitted that moving to the modern award would result in its funders having greater confidence in its industrial arrangements and this would likely provide greater incentive for them to continue to fund the organisation. 

The views of the employee organisation covered by the agreement and its circumstances, including the likely effect that the termination will have on it

1. There are no employee organisations covered by the Agreement. 

The views of employees and their circumstances, including the likely effect that the termination will have on each of them

1. No submissions in opposition were filed by any employee and no employee attended the hearing on 12 April 2022 to provide their views or evidence in relation to their circumstances. During the hearing on 12 April 2022 the Applicant submitted that the termination of the Agreement would have a positive impact on employees as moving to the modern award would result in its funders having greater confidence in its industrial arrangements, providing greater incentive for them to continue to fund the organisation which will enhance employment opportunities for its employees.  It also submitted that employees are unlikely to suffer any negative financial impact as it currently pays employees at rates above the modern award and did not intend to reduce employee pay if the Agreement is terminated.

Conclusion

1. Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

1. Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 22 April 2022. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

[1] [[2013] FWCA 4104].

[2] Kellogg Brown & Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40.

[3] Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540, [129].

[4] Tahmoor Coal Pty Ltd [2010] FWA 6486, [32].

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