1
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union, Peter Cowan,
Darren Sisson, Rod McLean, Dayle Marriott, David Bickhoff
v
Falcon Mining Pty Ltd T/A Falcon Mining
(C2020/4783)
DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 17 DECEMBER 2021
Application for the Commission to deal with a dispute under an enterprise agreement – new
enterprise agreement approved – previous enterprise agreement ceases to operate – no
jurisdiction for the Commission to deal with the dispute under the previous enterprise
agreement – application dismissed
Introduction
[1] The CFMMEU is the first applicant in these proceedings. It is also the representative of
the second, third, fourth, fifth and sixth applicants, who were formerly employed by Falcon
Mining Pty Ltd (Falcon Mining).
[2] The second to sixth applicants (Employees) were covered by the Falcon Mining
Enterprise Agreement 2017 (2017 Enterprise Agreement) during their employment with
Falcon Mining. The employment of each of the Employees with Falcon Mining came to an end
on 26 June 2020.
[3] On 19 June 2020, the applicants filed an application in the Fair Work Commission
(Commission) pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute
resolution procedure in clause 7 of the 2017 Agreement (Application). The Application
concerns the proper characterisation of the employment of the Employees and their claim to a
range of entitlements.
[4] It is clear that the dispute which is the subject of the Application falls within the scope
of disputes which may be dealt with in accordance with the dispute settlement procedure set
out in clause 7 of the 2017 Enterprise Agreement.
[5] I attempted without success to conciliate the dispute on a number of occasions. I then
listed the dispute for hearing by arbitration. I also issued a number of interlocutory decisions
concerning matters such as an application for an order for the production of documents. For
various reasons requested by the parties, the hearing dates for the arbitration were vacated and
[2021] FWC 6623 [Note: This decision has been quashed - refer to Full
Bench decision dated 8 June 2022 [2022] FWCFB 93]
DECISION
AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2022FWCFB93.htm
[2021] FWC 6623
2
rescheduled on a number of occasions. Ultimately, the matter was set for hearing by arbitration
in the Commission from 13 until 17 December 2021.
[6] On 7 December 2021, the Commission approved the Falcon Mining Enterprise
Agreement 2021 (2021 Enterprise Agreement). It commenced operation on 14 December
2021. The 2021 Enterprise Agreement has the same coverage as the 2017 Enterprise
Agreement. None of the Employees are currently employed by Falcon Mining. Accordingly,
the 2021 Enterprise Agreement does not apply to them. Although the CFMMEU was a
bargaining representative for the 2021 Enterprise Agreement, it did not apply to be covered by
the 2021 Enterprise Agreement. As a result, the CFMMEU is not covered by the 2021
Enterprise Agreement.
Jurisdiction
[7] Subject to one issue which I discuss below, both parties agree that if I apply the ratio of
the decision of the Full Bench of the Commission in Simplot Australia Pty Ltd v Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian
Manufacturing Workers Union1 (Simplot), I will conclude that the Commission does not have
jurisdiction to deal with the dispute the subject of these proceedings. In Simplot, the Full Bench
concluded that the “Commission has no jurisdiction to deal with a dispute under a disputes
procedure in an enterprise agreement that has ceased to operate”.2
[8] The CFMMEU contends that Simplot was wrongly decided.
[9] Falcon Mining submits that Simplot was correctly decided and, in any event, there is
nothing about the present case that would lead me, as a single member of the Commission, to
decide the present dispute other than by following and applying the ratio in Simplot.
[10] I do not consider that Simplot was wrongly decided. But even if I did, I would follow it
as a single member of the Commission.3 The appropriate place for any reconsideration of the
ratio in Simplot is before another Full Bench of the Commission.
[11] During oral argument Ms Doust, on behalf of the applicants, sought to distinguish the
present case from Simplot on the basis that the employees who were party to the dispute in
Simplot remained employed by Simplot after the new enterprise agreement was made. In the
present case, the Employees ceased to be employed by Falcon Mining on 26 June 2020, have
not been reemployed by Falcon Mining since that time, and there is no current proposal for any
of them to be reemployed by Falcon Mining in the future. In those circumstances, the applicants
contend that the 2017 Enterprise Agreement continues to apply to them, with the result that the
2017 Enterprise Agreement has not ceased to operate in accordance with s 54(2) of the Act.
That argument involves a number of steps. First, it is necessary to consider s 58(2) of the Act
to determine when an enterprise agreement ceases to operate. Paragraph 58(2)(a) of the Act is
not relevant to the present dispute. Paragraph 58(2)(b) provides that an enterprise agreement
1 [2020] FWCFB 5054
2 Simplot at [18]
3 Cetin v Ripon Pty Ltd (2003) 127 IR 205 at [48]; Re Dalrymple Bay Coal Terminal Pty Ltd [1996] AIRC 2141 at [73];
Pacific Access Pty Ltd v CPSU [1998] AIRC 1745 (Print Q4738); Modern Awards Review 2012 [2012] FWAFB 5600 at
[86]-[87]
[2021] FWC 6623
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ceases to operate on the “day on which section 58 has the effect that there is no employee to
whom the agreement applies”.
[12] Secondly, paragraph 58(2)(e) of the Act deals with a circumstance in which an enterprise
agreement has passed its nominal expiry date. In those circumstances, “the earlier agreement
ceases to apply to the employee when the later agreement comes into operation, and can never
so apply again”. The applicants point out, however, that paragraph 58(2)(e) of the Act is only
engaged if paragraphs 58(2)(a), (b) and (c) (if it is applicable) are satisfied. The condition
addressed in paragraph 58(2)(a) is that an earlier enterprise agreement applies to an employee
in relation to particular employment. The condition addressed in paragraph 58(2)(b) is that
another enterprise agreement that covers the employee in relation to the same employment
comes into operation. Paragraph 58(2)(c) concerns a single enterprise agreement replacing a
multi-enterprise agreement, which is not relevant to the current dispute.
[13] Thirdly, the applicants contend that paragraph 58(2)(b) of the Act is not satisfied in
relation to the Employees because the 2021 Enterprise Agreement does not cover them. It
follows, so the applicants submit, that section 58 does not result in the 2017 Enterprise
Agreement not applying to them. Because the 2017 Enterprise Agreement continues to apply
to the Employees, it continues to operate and provides a source of jurisdiction for the
Commission to continue dealing with the present dispute.
[14] I do not accept this new argument by the applicants. The fundamental flaw in the
argument is that one does not look to s 58 of the Act to determine whether an enterprise
agreement has ceased to apply to a former employee. An enterprise agreement only applies to
an employee if, amongst other things, “the agreement covers the employee” (s 52(1)(b) of the
Act). An enterprise agreement covers an employee “if the agreement is expressed to cover
(however described) the employee” (s 53(1) of the Act). The fact that coverage of an enterprise
agreement occurs in relation to particular employment4 is irrelevant to the question of whether
coverage exists. That is determined by the terms of the enterprise agreement in question. In the
present case, the 2017 Enterprise Agreement deals with coverage in clause 4. It is clear from
that provision that a person must be an employee of Falcon Mining and be employed in one of
the classifications defined in clause 13 of the 2017 Enterprise Agreement in order to be covered
by it. The Employees ceased to be employed by Falcon Mining on 26 June 2020. At that time,
they ceased to be covered by the 2017 Enterprise Agreement and it no longer applied to them.
Accordingly, when considering whether there is “no employee to whom the agreement applies”
within the meaning of paragraph 54(2)(b) of the Act, it is only necessary to consider s 58 for
employees who are employed by the employer at that time; former employees ceased to have
the enterprise agreement apply to them when they ceased employment with their employer.
[15] There is no doubt that the applicable elements of s 58 of the Act are satisfied in this
case. Immediately prior to the commencement of operation of the 2021 Enterprise Agreement,
the 2017 Enterprise Agreement applied to employees of Falcon Mining in relation to their
particular employment with Falcon Mining (s 58(2)(a) of the Act). The 2021 Enterprise
Agreement came into operation and has the same coverage as the 2017 Enterprise Agreement
(s 58(2)(b) of the Act). The 2017 Enterprise Agreement has passed its nominal expiry date.
Accordingly, the 2017 Enterprise Agreement ceased to apply to the persons employed by
4 Section 53(6) of the Act
[2021] FWC 6623
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Falcon Mining at the time the 2021 Enterprise Agreement came into operation (s 58(2)(e) of
the Act). It follows that there is no employee to whom the 2017 Enterprise Agreement applies,
and it has ceased to operate (s 54(2) of the Act). An enterprise agreement which has ceased to
operate does not give a person an entitlement under the agreement and does not impose any
obligations on a person (s 51 of the Act). As was concluded by the Full Bench in Simplot, the
“Commission has no jurisdiction to deal with a dispute under a disputes procedure in an
enterprise agreement that has ceased to operate”.5
Conclusion
[16] For the reasons given, the Application is dismissed for want of jurisdiction.
DEPUTY PRESIDENT
Appearances:
Ms L Doust, counsel, for the Applicant
Mr J E Murdoch QC, counsel for the Respondent
Hearing details:
2021.
Newcastle (by videoconference):
December 17.
Printed by authority of the Commonwealth Government Printer
PR736885
5 Simplot at [18]
THE FAIR WORK AUSTRALIA IS SION THE SE
