Fair Work Act 2009

s.251 - Application for a variation of a single interest employer authorisation

Peabody Energy Australia Coal Pty Ltd T/A Peabody

s.251 - Application for a variation of a single interest employer authorisation in B2023/1339 to remove an employer - changed circumstances arising from pending mine closure - all parties in support or not opposed - variation appropriate and order made.

• [1] Peabody Energy Australia Coal Pty Ltd trading as Peabody (Peabody) has applied to the Commission under s.251 of the Fair Work Act 2009 (Act) to vary a single interest employer authorisation. The Authorisation[1] was issued by the Commission under s.248 of the Act on 23 August 2024.[2]

• [2] The Authorisation was sought and granted[3] in respect of bargaining for a proposed multi-enterprise agreement to cover a defined group of employees engaged by a number of employers operating in the black coal mining industry in New South Wales.

• [3] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) was the applicant for the Authorisation, which presently covers the following employers:
  • Peabody Energy Australia Coal Pty Ltd at Wambo Underground Coal Mine;
  • Ulan Coal Mines Pty Ltd at Ulan No.3 Underground Coal Mine; and
  • Whitehaven Coal Mining Ltd at Narrabri Coal Mine.

• [4] This application seeks to remove Peabody from the Authorisation under s.251(1) of the Act, largely on the basis of the pending closure of its Wambo mine.

• [5] In the decision[4] approving the making of the Authorisation, the Full Bench of the Commission acknowledged that the mine life of Peabody's Wambo Underground Coal Mine was subject to review and potential change, and outlined an avenue by which a variation might be sought in the following terms:

"[661] ... ... we acknowledge that the anticipated life of a mine may mean that a mine ceases operation or moves into its closure phase in the foreseeable future. As stated earlier, there is some uncertainty and considerable conjecture about the timing of this aspect. In this regard, we note that s.251 of the FW Act enables an employer or bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates to apply for a variation to remove the employer's name from the authorisation. ... ...

[662] If the circumstances subsequently changed significantly such that, for example, the SIEA Employees employed by Peabody actually ceased carrying out the work proposed to be covered by the multi-employer agreement, it would likely follow that requiring Peabody to continue to bargain with the other Respondent Employers would no longer be appropriate."

• [6] Having considered this application, today I issued an Order[5] varying the Authorisation as sought. My reasons for doing so are briefly set out below.

• [7] As outlined above, the Act provides a scheme to add and remove employers from any Authorisation issued. The parties subject to an authorisation may apply either jointly, or separately, to the Commission for the variation of an authorisation. Different rules apply depending on whether the application is made by an employer or bargaining representative of an employee who will be covered by the proposed enterprise agreement.

• [8] The application relies upon s.251(1), (2) and (2A) of the Act which provide as follows:

"251 Variation of single interest employer authorisations

(1) The following may apply to the FWC for a variation of a single interest employer authorisation to remove an employer's name from the authorisation:

(b) a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates.

(2) The FWC must vary the authorisation to remove the employer's name if:

(a) an application has been made under subsection (1); and

(b) the requirements of either subsection (2A) or (2B) are met.

(2A) The requirements of this subsection are met if the FWC is satisfied that:

(a) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(b) because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation."

• [9] I observe that s.251(2B) and related provisions (not set out above) apply where the application is made by an employee bargaining representative and are not relevant here.

• [10] Peabody is eligible to make this application as an employer presently subject to the Authorisation. In the circumstances present here, s.251(2) provides that if the requirements of ss.(2A) are met, the Commission must make the variation to remove the employer's name from the Authorisation. Those requirements are that:

• employers specified in the authorisation (existing employers) and the bargaining representatives of the employees of those employers have had an opportunity to express to the Commission their views (if any) on the application; and

• because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation. I consider that this requires the Commission to be satisfied that there is a relevant change in circumstances from those evident at the time that the Authorisation was made.

• [11] As to the first requirement, Peabody consulted with the other existing employers prior to making the application and subsequently communicated their view, not to oppose the application, to the Commission. Peabody also consulted with APESMA as the bargaining representative of the relevant employees and its position of non-objection was also communicated to the Commission. Further, as a matter of abundant caution, the Commission provided a direct opportunity for all of these parties to express their views to the Commission and to seek a hearing if required. This opportunity meets the requirements of s.251(2A)(a) of the Act. I observe that all of the relevant parties have raised no objections with the application.

• [12] In relation to the changed circumstances, Peabody relies upon a statement and associated attachments provided by its HR Director, Scott Moran. Some of the factors relied upon to support its claim that there has been a change in circumstances meaning they should no longer be covered by the Authorisation include the following:
  • Since the granting of the Authorisation, the mine plan for underground mining operations at the Wambo Mine has been amended which has brought forward the likely closure date to a date to be determined in or around the third quarter of 2025.
  • As a result of the impending cessation of underground operations at the Wambo Mine, it is anticipated that Peabody's employees covered by the Authorisation will no longer be required to perform work for Peabody at the Wambo Mine and that many will be made redundant in or around the third quarter of 2025 if they are unable to be redeployed to another location.
  • There is little or no prospect of any proposed enterprise agreement being made under the Authorisation prior to the anticipated cessation of underground operations at the Wambo Mine, and the likely redeployment or redundancy of the majority of Peabody's employees covered by the Authorisation at the Wambo Mine.

• [13] I am satisfied that there are relevant changes directly associated with the pending closure of the Wambo mine that have taken place since the making of the Authorisation. Having regard to these changes and the particular circumstances of this matter more generally, I also find that it is no longer appropriate for Peabody to be specified in the Authorisation.

• [14] As a result, I was obliged to make an order removing Peabody from the Authorisation.

• [15] Being satisfied that all of the requirements for making the variation to the Authorisation as sought had been met, an order[6] confirming the variation is being issued by the Commission in conjunction with this decision.

[1] PR777608.

[2] The Authorisation and subsequently corrected on 16 September 2024.

[3] APESMA v Great Southern Energy Pty Ltd and Ors [2024] FWCFB 253.

[5] PR788766.

[6] PR788766.

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