Rio Tinto Coal Australia Pty Limited T/A Blair Athol Coal Project

[2013] FWCA 2460

[2013] FWCA 2460

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Rio Tinto Coal Australia Pty Limited T/A Blair Athol Coal Project
(AG2013/909)

BLAIR ATHOL COAL MECHANICAL EMPLOYEES UNION COLLECTIVE WORKPLACE AGREEMENT 2008

Coal industry
COMMISSIONER SPENCER	BRISBANE, 22 APRIL 2013

Application for termination of the Blair Athol Coal Mechanical Employees Union Collective Workplace Agreement 2008.

[1] Rio Tinto Coal Australia Pty Ltd trading as the Blair Athol Coal Project (Rio Tinto) has made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the Act) to terminate Blair Athol Coal Mechanical Employees Union Collective Workplace Agreement 2008 1 (the Agreement).

[2] The Agreement has a nominal expiry date of 19 December 2010 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Section 226 of the Act provides:

“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.”

[4] Item 16 of Schedule 3 of the Transitional Act provides, so far as presently relevant, that:

“Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[5] The application to terminate the Agreement was lodged on 16 April 2013. Rio Tinto provided in support of the application a statutory declaration of Ms Prue Lonergan, the Manager Closure - Blair Athol Mine. Ms Lonergan declares that the Blair Athol mine has now ceased all mining operations. The final day of coal production was 23 November 2012. It was further declared that no employs are currently covered by or performing work under the Agreement.

[6] 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. Correspondence was sent from Chambers to the AMWU to seek their views as to the termination.

[7] Ms Lisa Butler, Industrial Officer of the AMWU, responded advising that the AMWU does not object to the termination of the Agreement.

[8] On the available material, it may be concluded that the termination of the Agreement would not be contrary to the public interest.

[9] In all the circumstances, I am satisfied that the requirements of s.226 of the Act relevant to this application have been met. The application is approved and, in accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.

COMMISSIONER

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