Public interest did not block termination of certified  agreement


Public interest did not block termination of certified agreement

This case confirms that the AIRC has to terminate a certified agreement if the termination is not contrary to public interest.


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This case confirms that the AIRC has to terminate a certified agreement if the termination is not contrary to public interest.

Relevant legislation is sec 170MH of the Workplace Relations Act 1996, which states:

'(1) After the nominal expiry date of a certified agreement:

… [parties may apply to terminate agreement] ...

(2) On receiving the application, the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.

(3) If, after complying with subsection (2), the Commission considers that it is not contrary to the public interest to terminate the agreement, the Commission must, by order, terminate the agreement.

(4) The termination takes effect when the Commission's order takes effect.'

The employer here applied to terminate an agreement. The CFMEU opposed this. The agreement had a nominal expiry date of 5 July 2004.


In the commission’s view the following applied when deciding whether it was in the public interest to terminate the agreement:

  1. Public interest is a broad concept which includes considerations beyond those of the direct parties. Indeed, the public interest may be different to the interests of the parties.
  2. Establishing public interest involves the commission examining all the circumstances of the matter.
  3. The views of employees are not to be given determinative weight, but form part of the framework of decision making.
  4. The direct effect on the take-home pay of employees if an agreement is terminated is not a matter that enlivens the public interest.
  5. The accrued rights and entitlements of employees are matters which can be considered part of the public interest. Undertakings in this regard by an applicant employer can be given weight.
  6. The possible effect of advantaging one party in negotiations by terminating an agreement is not a matter of public interest.
  7. There is no inherent right enjoyed by a party entitling that party to a certified agreement.
  8. The concept of 'bargaining in good faith' does not exist in law.
  9. The intentions of the parties to an agreement may be a relevant factor when considering whether to terminate an agreement or not.
  10. The establishment of any positive effect on the public interest is unnecessary and irrelevant.
  11. A basic premise must be that a certified agreement is intended to exist for its nominal term.
  12. The commission has a narrow discretion in applications under s.170MH.

The commission considered the above and concluded that there were no public interest considerations which would prevent the termination of the Certified Agreement. Therefore the application was not contrary to the public interest and the commission was accordingly compelled to terminate the certified agreement.

In this case the employees had been on strike for a considerable period and that strike would continue until at least 20 September 2004. Therefore, no employee was actually earning any benefits under the agreement at this time or would do so in the immediate future. Accordingly, the order came into effect on and from 16 September 2004.

Endeavour Coal Pty Ltd re BHP Illawarra Coal Elouera Colliery Certified Agreement 2001 –AIRC (Roberts C) –AG808705 PR951902 – 15 September 2004.



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