decision

Wollongong Coal Limited v Construction, Forestry, Maritime, Mining and Energy Union - decision

Litigation

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Filing Year For Action

Wollongong Coal sought to terminate its NRE No 1 Colliery Workplace Agreement under section 225 of the Fair Work Act 2009, arguing that the 2011 Agreement was outdated, financially burdensome, and restrictive for plans to reopen the Russell Vale mine, which had ceased operation and entered care and maintenance in 2015. The company planned to restart operations using a more labour-intensive bord and pillar mining method but claimed it was unable to achieve necessary operational flexibility under the existing agreement. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) opposed the termination, asserting it would negatively impact former employees who expected re-employment under the agreement and could set a precedent lowering regional industry standards.

On Aoril 7, 2020, Commissioner Riordan dismissed Wollongong Coal’s termination application, concluding that the termination was not clearly in the public interest, given uncertain employment benefits and potential negative impacts on regional wages. Riordan also highlighted past compliance concerns with Wollongong Coal’s financial and employment obligations. The company appealed, arguing errors in the decision-making process, notably that speculative negative outcomes were improperly weighted, and that the Commission failed to properly assess the importance of termination for reopening the mine.

On 24 September 2020, a Full Bench of the Fair Work Commission upheld Wollongong Coal’s appeal. The Bench found the original decision contained significant errors in applying the legislative criteria under section 226, including improperly emphasizing speculative regional wage outcomes while inadequately evaluating the operational and financial necessity for terminating the agreement. Climate change issues, though briefly mentioned during the original proceedings, were explicitly considered not to be relevant to the Commission’s decision-making process, as policy on climate change and coal mining is a matter for government. The Full Bench quashed the initial decision and ordered a rehearing to properly determine if terminating the enterprise agreement was appropriate under all relevant circumstances.