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

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

The 1989 draft agreement was not an instrument under item 15 because it was never signed, never approved by the Coal Industry Tribunal and did not comply with the requirement for a specific term. The 1995 agreement was an agreement made under cl 32 of the award and approved by the Coal Industry Tribunal, and therefore at commencement of the 1994 Act was an instrument that took effect as an award under the Workplace Relations Act 1996 (Cth). However, the 1995 agreement was a creature of the award, suspended the award only in part and only for its specified term, and expired on 31 May 1998. Section 148 did not extend it beyond that term because, on expiry, the award again applied in its...

Jurisdiction
Australia
Judgment Date
26 July 2000
Procedural Posture
Reference From the Australian Industrial Relations Commission Pursuant to Subs 46(1) of the Workplace Relations Act 1996 (cth) / Federal Court Determination of Questions Referred by the Australian Industrial Relations Commission
Outcome
Questions referred by the Australian Industrial Relations Commission answered; the 1989 agreement was not an instrument, did not take effect as an award, and was not in force to set aside; the 1995 agreement was an instrument at commencement and took effect as an award, but was not in force to set aside.
Legal Topics
['australian Industrial Relations Commission Referral' 'coal Industry Award and Agreements' 'transitional Operation of Industrial Instruments' 'expiry of Agreement Made Under Award' 'workplace Relations Act 1996 (cth) Ss 147 and 148']
['industrial Law'] ['australian Industrial Relations Commission Referral' 'coal Industry Award and Agreements' 'transitional Operation of Industrial Instruments' 'expiry of Agreement Made Under Award' 'workplace Relations Act 1996 (cth) Ss 147 and 148']

Case Brief

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Procedural Posture

Reference From the Australian Industrial Relations Commission Pursuant to Subs 46(1) of the Workplace Relations Act 1996 (cth) / Federal Court Determination of Questions Referred by the Australian Industrial Relations Commission

Legal Issues

  1. 1 ['Whether the 1989 BHP Utah Clause 32 Agreement was an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994.' 'Whether the 1989 BHP Utah Clause 32 Agreement had effect as, and was to be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth).' 'Whether the 1989 BHP Utah Clause 32 Agreement was in force to set aside.' 'Whether the 1995 BHP Utah Clause 32 Agreement was an "instrument" within the meaning of item 15 of schedule 1 of the Industrial Relations Legislation Amendment (No. 2) Act 1994.' 'Whether the 1995 BHP Utah Clause 32 Agreement had effect as, and was to be taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth).' 'Whether the 1995 BHP Utah Clause 32 Agreement was in force to set aside.']

Ratio Decidendi

The 1989 draft agreement was not an instrument under item 15 because it was never signed, never approved by the Coal Industry Tribunal and did not comply with the requirement for a specific term. The 1995 agreement was an agreement made under cl 32 of the award and approved by the Coal Industry Tribunal, and therefore at commencement of the 1994 Act was an instrument that took effect as an award under the Workplace Relations Act 1996 (Cth). However, the 1995 agreement was a creature of the award, suspended the award only in part and only for its specified term, and expired on 31 May 1998. Section 148 did not extend it beyond that term because, on expiry, the award again applied in its...

Court Disposition

Questions referred by the Australian Industrial Relations Commission answered; the 1989 agreement was not an instrument, did not take effect as an award, and was not in force to set aside; the 1995 agreement was an instrument at commencement and took effect as an award, but was not in force to set aside.

Orders

  • ['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...