THE Australian Manufacturing Workers Union (AMWU) has been unsuccessful in appealing a Fair Work Commission decision upholding the right of a coal sector employer to terminate an enterprise agreement.

A FWC full bench comprising Senior Deputy President O’Callaghan, Deputy President Binet and Commissioner Hampton last week heard the AMWU’s appeal of Commissioner Cloghan’s June decision that the Griffin Coal (Maintenance) Collective Agreement 2012 should be terminated pursuant to section 225 of the Fair Work Act.

The agreement covers maintenance employees engaged in the Griffin Coal mining operations in the Collie Basin, Western Australia.

As outlined in a previous AREEA News Update case summary, in the first instance Commissioner Cloghan agreed with Griffin Coal’s evidence that the enterprise agreement significantly impaired its ability to operate productively and efficiently, and contributed to exorbitant production costs resulting in significant losses to the company over a number of years.

A stay of the Commissioner’s decision had been granted pending the determination of the appeal.

The FWC full bench considered 10 grounds for appeal put forth by the AMWU which included arguments that Commissioner Cloghan had failed to correctly apply the test as to the public interest, failed to properly apply the test as to appropriateness, and incorrectly determined the termination would lead to productivity benefits.

Ultimately, the full bench found that the Commissioner ‘examined all of the relevant factors required pursuant to s.226 of the FW Act and that this was undertaken in an equitable and fair manner’.

“The Commissioner’s decision was clearly reached on the basis of a comprehensive consideration of the circumstances of the application before him and the application of the appropriate considerations arising under the Act,” the full bench continued.

“We are also not satisfied that the AMWU has identified appealable error in the exercise of the Commissioner’s discretion.”

While normally this decision would result in the stay immediately being set aside, the full bench noted that Griffin Coal sought to reach some form of agreement with its maintenance workers and from a ‘practical workplace relations perspective’, determined that the parties first participate in an urgent telephone hearing before Senior Deputy President O’Callaghan.

Click here to view the full decision.