[2010] FWA 6468 |
|
DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Tahmoor Coal Pty Ltd
(AG2010/6316, AG2010/6220)
Coal industry | ||
VICE PRESIDENT LAWLER | MELBOURNE, 23 AUGUST 2010 | |
Termination of enterprise agreement - when is it “appropriate” to terminate an agreement.
Introduction
[1] Tahmoor Coal Pty Ltd (Tahmoor) has made application pursuant to s.225 of the Fair Work Act 2009 (FW Act) to terminate two agreements:
- The Tahmoor Colliery Enterprise Agreement 2006 (Colliery Agreement 1), a pre-reform certified agreement made under the provisions of the Workplace Relations Act 1996 (WR Act) as it existed before the WorkChoices amendments; and
- The Tahmoor Washery Workplace Agreement 2006 (Washery Agreement 2), which is a workplace agreement made under the WorkChoices version of the WR Act.
(together, the Agreements).
[2] The Construction, Forestry, Mining and Energy Union (CFMEU) appeared to oppose the applications.
[3] By virtue of item 2(5)(c)(v) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the Agreements are “collective agreement-based transitional instruments” for the purposes of that Act. Pursuant to item 16 of Schedule 3 of that Act, the applications are properly brought under s.225 of the FW Act.
[4] I have come to the view that the applications should be dismissed. These are my reasons for reaching that conclusion.
Background facts and circumstances
[5] Both of the Agreements have passed their nominal expiry date. The nominal expiry date of the Colliery Agreement was 3 April 2009 and the nominal expiry date of the Washery Agreement was 1 April 2008.
[6] Tahmoor was acquired by Xstrata during the nominal life of the Agreements. Xstrata is a very large multinational mining business. As a practical matter, Xstrata is “calling the shots” in relation to what can be agreed by Tahmoor for the purposes of a replacement agreement. Of course, there is nothing intrinsically wrong or sinister about that.
[7] Tahmoor has embarked upon a very substantial programme of capital improvements to its mine and associated infrastructure.
[8] Each of the Agreements provided that the parties would commence bargaining for a replacement agreement no later than six months before the nominal expiry date. Bargaining for a replacement agreement(s) commenced as contemplated by the Agreements and has been continuing for more than 18 months (albeit that this period has been punctuated by periods when the parties did not meet or otherwise advance the bargaining, for example while the proceedings before Commissioner Roberts were being pursued and for a period when Tahmoor put a proposed agreement to the employees for their consideration and vote - see below). There been almost 60 bargaining meetings.
[9] The employees have taken protected industrial action in the form of strikes. Tahmoor has taken employer response action in the form of a lockout, albeit that, as at the time of the hearing, that action has been relatively limited.
[10] The CFMEU brought an application against Tahmoor for bargaining orders, alleging that Tahmoor had breached…
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- [2010] FWA 6468
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