BHP Coal Pty Ltd, in the matter of clause 32 of the Collieries Staff Award 1984 [2000] FCA 996

FEDERAL COURT OF AUSTRALIA

BHP Coal Pty Ltd, in the matter of Clause 32 of the Collieries Staff Award 1984 [2000] FCA 996

INDUSTRIAL LAW – Australian Industrial Relations Commission – referral pursuant to subs 46(1) of the Workplace Relations Act 1996 (Cth) – agreement made under award – relevant terms of agreement and award inconsistent – provision in agreement that it operate for fixed term – term expired – no new agreement entered into – whether agreement remains operative notwithstanding provision as to expiry – whether award applies in absence of agreement – held agreement had expired – award applied in its entirety on expiry Workplace Relations Act 1996 (Cth), subss 46(1), 147(1), 147)(2), 148(1), 148(2) Industrial Relations Legislation Amendment Act (No 2) 1994 (Cth), Sch 1, item 15 Coal Industry Act 1946 (Cth), s 36 IN THE MATTER OF COLLIERIES STAFF AWARD 1984 AND AGREEMENTS BETWEEN BHP COAL PTY LTD AND THE AUSTRALIAN COLLIERIES' STAFF ASSOCIATION, PURPORTEDLY PURSUANT TO CLAUSE 32 OF THE SAID AWARD Q 38 OF 2000 DOWSETT J 26 JULY 2000 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 38 OF 2000

On referral from the Australian Industrial Relations Commission

IN THE MATTER OF: COLLIERIES STAFF AWARD 1984

AND: AGREEMENTS BETWEEN BHP COAL PTY LTD AND

THE AUSTRALIAN COLLIERIES' STAFF ASSOCIATION, PURPORTEDLY PURSUANT TO CLAUSE 32 OF THE SAID AWARD

JUDGE: DOWSETT J

DATE OF ORDER: 26 JULY 2000

WHERE MADE: BRISBANE

The questions posed by the Australian Industrial Relations Commission are as follows: 1.1 Is the BHP Utah Clause 32 Agreement an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994; 1.2 Does the BHP Utah Clause 32 Agreement have effect as, and be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth); and 1.3 Is the BHP Utah Clause 32 Agreement in force to set aside? 2.1 Is the BHP Utah 1995 Clause 32 Agreement an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994; 2.2 Does the BHP Utah 1995 Clause 32 Agreement have effect as, and be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth); and 2.3 Is the BHP Utah 1995 Clause 32 Agreement in force to set aside? The COURT answers these questions AS FOLLOWS: 1.1 No. 1.2 No. 1.3 No. 2.1 As at the date of commencement of the Industrial Relation Legislation Amendment (No 2) Act 1994, the BHP Utah 1995 Clause 32 Agreement was an instrument within the meaning of item 15 of sch 1 of that Act. 2.2 Upon commencement of the said Act, the BHP Utah 1995 Clause 32 Agreement took effect as an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth). 2.3 No.