Application for termination of the NPG Mining Enterprise Agreement 2016

[1] National Personnel Group Pty Ltd (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the NPG Mining Enterprise Agreement 2026 (Agreement). A Form F24C - Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

[2] The Agreement is a single enterprise agreement. It was approved by the Commission on 21 December 2017.[1]

[3] The nominal expiry date of the Agreement is 21 December 2021.

[4] The relevant provisions of the Act are as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement."

[5] The Applicant is the employer covered by the Agreement and has standing to make the Application (s.225(a)) of the Act).

[6] The Agreement has passed its nominal expiry date (s.225 of the Act).

Section 226(3) - views of employees, each employer and each employee organisation covered by the agreement

[7] Section 226(3) of the Act provides that in deciding whether to terminate the Agreement, the Commission must consider the views of the following covered by the Agreement:

• (a) the employees (unless there are no employees covered by the Agreement);

• (b) each employer;

• (c) each employee organisation (if any).

[8] On 20 January 2025 the Commission set out directions requiring that the Applicant send a copy of an email drafted by the Commission to employees, employee organisations and other employers covered by the Agreement together with the application and documents relevant to the application. The email drafted by the Commission explained the considerations the Commission needs to have regard to in deciding whether to terminate the agreement and invited views of those covered by the agreement, including employees, employers and employee organisations. The Applicant provided evidence of compliance with the directions to the Commission.

[9] No person raised any objections in relation to the application.

[10] Section 226(4) of the Act requires that in deciding whether to terminate the Agreement the Commission must have regard to:

• (a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

• (b) whether bargaining for the proposed agreement is occurring; and

• (c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

[11] It is declared in the Form F24C filed with the application that the process of making a proposed new enterprise agreement has not started and I am satisfied that none of the circumstances described in s.226(4) are present in relation to the current application.

[12] Section 226 of the Act sets out the grounds upon which the Commission must terminate an enterprise agreement if an application is made under section 225. In particular, ss.226(1) and 226(1A) provide:

"226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

• (b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

• (c) all of the following apply:

  • (i) the Commission is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

  • (ii) the Commission is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

  • (iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment - each employer covered by the agreement has given the Commission a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1)

only if the FWC is satisfied that it is appropriate in all the circumstances to do so."

Section 226(1)(a) - would the continued operation of the agreement be unfair for the employees covered by the agreement?

[13] The Applicant relied on s.226(1)(a) in seeking to terminate the Agreement. In this regard the Applicant submitted:

• the Agreement no longer reflects contemporary workplace conditions or minimum employment standards;

• since the Agreement was made, there have been significant changes to the modern award safety net, the National Employment Standards and industry practices;

• employees covered by the Agreement are disadvantaged when compared with employees performing similar work under the relevant modern award, particularly in relation to pay rates, penalty rates, overtime, and/or flexibility arrangements;

• the Agreement no longer serves its original purpose and does not meet the current needs or expectations of the workforce;

• the continued operation of the agreement creates inequity and unfairness for employees and is inconsistent with the objects of the Act;

• it would be unfair for employees to continue to be covered by the Agreement when the Manufacturing and Associated Industries and occupations Award 2020 (Award) is more current and appropriate for employees.

[14] I have considered the terms of the Agreement compared to the Award. The Award includes:

• provisions that provide greater certainty regarding hours of work for part time employees (see clause 10.3 of the Award compared to clause 2.3(a) of the Agreement);

• a default minimum engagement period for a casual employee of 4 hours, except where an employee requests and the employer agrees to an engagement of no less than 3 hours (clause 11.2 of the Award) compared with the minimum casual engagement of 3 hours under the Agreement (clause 2.4(4);

• a higher prescribed amount for the meal allowance and vehicle allowance;

• some allowances not provided for in the Agreement including but not limited to leading hand allowance (clause 30.2(a)), first aid allowance (clause 30.3(b)), protective clothing and equipment allowance (clause 30.2(f));

• call back (clause 32.13) and standing by (clause 32.14) entitlements;

• a delegates' rights term (clause 40A);

• dispute resolution procedure training leave (clause 44).

[15] In comparison the Agreement:

• prescribes a rostered day off arrangement (clause 4.4) that is not prescribed by the Award;

• a paid 15minute meal break per shift, although the Agreement does state that an employee must work during the break if directed to do so (clause 4.2(2)), although the Award provides for higher penalties for working during a meal break (see clause 4.2(4) of the Agreement compared to clause 18.5(b) of the Award;

• prescribes a more generous shift loading for an employee on a night shift (25% as per clause 4.6(2)) compared to the Award (see clause 33.2(d)) which prescribes a 15% loading) with the exception of a permanent night shift employee who would be entitled to be paid 130% of the ordinary hourly rate for all time worked during ordinary hours (clause 33.2(f)(iii)).

[16] The Agreement provided for three wage increases with the last to take effect from the first full pay period on or after 1 July 2020 (clause 3.3(1)). These increases were to be not less than CPI but were 'subject to business conditions' (clause 3.3(2)). It is therefore unclear as to whether employees received these increases. Despite this, it appears that the base hourly rates in the Agreement on commencement are still higher than the base hourly rates in the Award as can be seen below:

Description & qualifications/training requirements

Description & qualifications/training requirements

Trade Supervisor - Covers all class of competencies

Advanced Diploma or equivalent of which at least 50% of the competencies are in supervision/training.

Engineering tradesperson - special class level 1

(e.g. tradesperson special class, advanced trade skills)

Diploma of Advances Engineering, utilized by the Company

Engineering/ Manufacturing Tradesperson - Special Class Level I

C10 + 40% towards a Diploma of Engineering, or equivalent

40% towards an Advanced Diploma of Engineering, or 60% towards a Diploma of Engineering - Technical, 40% towards an Advanced Diploma of Laboratory Operations, 60% towards a Diploma of Laboratory Technology, or equivalent

Engineering/ Manufacturing Tradesperson - Level II

C10 + 20% towards a Diploma of Engineering or equivalent

Certificate III in Engineering - Technician, or Certificate III in Laboratory Skills, or Certificate III in Manufacturing Technology, provided that the minimum experience required for a Technology Cadet has been completed, or 50% towards a Diploma of Engineering, or equivalent

(e.g. Tradesperson - mechanical/electrical/fabrication)

Engineering/ Manufacturing Tradesperson - Level I

Recognised Trade Certificate, or Certificate III in Engineering - Mechanical Trade, or Certificate III in Engineering - Fabrication Trade, or Certificate III in Engineering - Electrical/Electronic Trade, or equivalent

[17] On 13 February 2026 I provided the above analysis to the Applicant noting that I was not yet satisfied of the circumstances in s.226(1)(a), particularly as the rates in the Agreement appear higher and the Agreement provides some benefits that may be of importance to employees and which are not otherwise provided by the Award.

[18] The Applicant was invited to make further submissions addressing why the Commission should be satisfied, in accordance with s.226(1)(a), that the continued operation of the Agreement would be unfair for the employees covered by it. The Applicant did not make submissions by the time required and a follow up email was sent on 23 February 2026. As at the date of this decision, the Applicant did not make submissions addressing the Commission's concern and did not otherwise correspond with the Commission about the matter following the Commission's emails of 13 and 23 February 2026.

[19] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am not satisfied that the continued operation of the Agreement would be unfair for the employees covered by it (s.226(1)(a)) and I am not satisfied of the existence of the other circumstances in ss.226(1)(b) and (c). I do not consider it is appropriate to terminate the Agreement having regard to the circumstances known to the Commission.

[20] As such, the application is dismissed.

[1] [2017] FWCA 6927.

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