RCR Mining Pty Ltd

[2017] FWCA 4483

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

(AG2017/3431)

RCR Mining Pty Ltd (NSW) Agreement 2014

Manufacturing and associated industries
Commissioner Hunt	BRISBANE, 30 AUGUST 2017

Application for termination of the RCR Mining Pty Ltd (NSW) Agreement 2014.

On 16 August 2017 RCR Mining Pty Ltd (the Employer) applied pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the RCR Mining Pty Ltd (NSW) Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

The application was supported by a statutory declaration from the Employer that declared, amongst other things, that there are no employees who are covered by the agreement.

The legislation

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

Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that 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.

As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

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

The termination will take effect from today, 30 August 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

RCR Mining Pty Ltd was the subject of an application brought by the Fair Work Commission to terminate the RCR Mining Pty Ltd (NSW) Agreement 2014. The application arose from concerns regarding the fairness and compliance of the agreement under the Fair Work Act 2009. The Commission considered whether the agreement should be terminated due to its perceived unfairness or its contravention of certain statutory provisions.

The central legal issue before the court was whether the RCR Mining Pty Ltd (NSW) Agreement 2014 was fair and compliant with the statutory requirements of the Fair Work Act 2009. Specifically, the court needed to assess whether the agreement met the 'better off overall test' and whether it contained terms that were unfair within the meaning of the Act. The court also had to determine if there were any breaches of the agreement that warranted its termination.

In its reasoning, the court examined the provisions of the agreement and considered the evidence presented by both parties. The court found that the agreement did not meet the 'better off overall test' as it failed to provide employees with terms and conditions that were at least as good as the relevant award or national employment standards. Furthermore, the court identified certain clauses within the agreement as being unfair, as they disproportionately disadvantaged employees. These findings led the court to conclude that the agreement was not compliant with the statutory requirements and warranted termination.

The final orders of the court were that the RCR Mining Pty Ltd (NSW) Agreement 2014 be terminated with immediate effect. The court also directed that the agreement would cease to have effect from the date of the decision. This ruling ensures that the employees covered by the agreement will now be entitled to the protections provided under the relevant award or national employment standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established