RCR Mining Pty Ltd

[2017] FWCA 4731

[2017] FWCA 4731

The attached document replaces the document previously issued with the above code on 11 September 2017.

Paragraph numbering corrected.

Nahum Moreau

Associate to Commissioner Hunt

Dated 12 September 2017

[2017] FWCA 4731

FAIR WORK COMMISSION

DECISION

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

RCR Mining Pty Ltd
(AG2017/3438)

RCR MINING PTY LTD (WACOL, QLD) ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 11 SEPTEMBER 2017

Application for termination of the RCR Mining Pty Ltd (Wacol, Qld) Enterprise Agreement 2015.

[1] On 10 August 2017, RCR Mining Pty (the Employer) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the RCR Mining Pty Ltd (Wacol, Qld) Enterprise Agreement 2015 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration in support of the termination, declared by Mr Justin Roth, Director.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is an employee organisation covered by the Agreement.

[4] On 30 August 2017, I instructed my associate to write to the Employer in order to obtain the views of the employees and to understand how the proposed termination had been explained to the relevant employees and what rates of pay and conditions would apply if the Agreement was terminated.

[5] On 1 September 2017, the Employer wrote to the Commission advising that the Agreement covers five employees. In the event the Agreement is terminated, the conditions of employment would revert to those contained in the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). The Employer advised that the existing employees’ rates of pay and conditions would be maintained, and each employee has signed an individual flexibility arrangement to that effect.

[6] The AMWU was afforded an opportunity to consider the Employer’s response, and communicated on 11 September 2017 that it does not oppose the application.

The legislation

[7] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which 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

[8] Based on the material contained in the statutory declaration filed with the application and the information provided by the Employer on 1 September 2017, in consideration of s.226(a) of the Act, I am satisfied the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii) of the Act, I consider that it is appropriate to terminate the Agreement. With regard to the circumstances of the existing employees following termination of the Agreement, the Award will have application to the workplace, together with over-award payments described in each employee’s individual flexibility arrangement.

[10] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect from today, 11 September 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AE416168  PR596011>