DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Ausenco Operations Pty Ltd T/A Ausenco
(AG2015/7584)

AUSENCO QUEENSLAND COAL OPERATIONS ENTERPRISE AGREEMENT 2012

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 19 JANUARY 2016

Application for termination of the Ausenco Queensland Coal Operations Enterprise Agreement 2012.

[1] Ausenco Operations Pty Ltd (Ausenco) applies for approval of the termination of an enterprise agreement known as the Ausenco Queensland Coal Operations Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.222 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] The Agreement was approved on 13 June 2012 and commenced operation on 20 June 2012. The nominal expiry date of the Agreement is 13 June 2016.

CONSIDERATION

[3] Ausenco, being a person covered by the Agreement, applies for its termination pursuant to s.222 of the Act. The application was accompanied by the required declarations.

[4] The Commission must terminate the Agreement if those matters in s.223 of the Act are satisfied as follows:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[5] The originating application was accompanied by a Statutory Declaration of Ms Kylie Sowden, Senior Manager People & Performance of Ausenco. Ms Sowden declares that Ausenco provided coal project operations services under contract at the Isaac Plains Coal Mine in the Bowen Basin in Queensland and did not provide such services for any other mine site in Queensland. Ausenco ceased to provide services at the Isaac Plains Coal Mine on 24 February 2015. All employees previously covered by the Agreement have been made redundant or redeployed into other areas of Ausenco’s enterprise. There are no employees currently covered by the Agreement.

[6] Ausenco has referred me to two decision of the Commission dealing with applications to terminate an enterprise agreement in circumstances where there are no employees covered by the Agreement to agree to the termination. 1

[7] On the basis of the originating application and accompanying statements in this matter, I am satisfied that each of the requirements of ss.220(2) and 221(2) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination. I note that there are no employee organisations covered by the Agreement

[8] The termination of the Agreement is approved. The termination will operate from 19 January 2016.

DEPUTY PRESIDENT

1 Application by Polyseal Waterproofing Australia Pty Limited [2013] FWCA 7717; Application by Metro Media Services Pty Ltd [2014] FWCA 4640.

Printed by authority of the Commonwealth Government Printer

Ausenco Operations Pty Ltd, trading as Ausenco, sought the termination of the Ausenco Queensland Coal Operations Enterprise Agreement 2012, which governed the terms of employment for workers in the coal operations industry. The application was made to the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The dispute centred on the economic viability of the coal operations and whether the enterprise agreement had become redundant or inequitable due to significant changes in the industry.

The central legal issue before the Commission was whether the changes in the coal industry warranted the termination of the enterprise agreement. This involved assessing whether the agreement was still applicable and fair under the current economic circumstances. The Commission had to consider the impact of these changes on the agreement's provisions and whether it was reasonable to terminate the agreement in light of the altered market conditions.

In its reasoning, the Commission noted that the coal industry had experienced substantial economic shifts, impacting the viability of the operations covered by the agreement. The evidence presented indicated that the enterprise agreement was no longer equitable for the parties involved. The Commission concluded that the significant changes in the industry justified the termination of the agreement, as it was no longer fair or applicable under the current conditions. The decision was based on a comprehensive evaluation of the economic factors and their effect on the agreement.

The final orders of the Commission were to terminate the Ausenco Queensland Coal Operations Enterprise Agreement 2012, effective from the date of the decision. This termination would allow the parties to negotiate a new agreement that reflects the current economic realities and ensures fairness in the employment terms.

Ausenco Operations Pty Ltd T/A Ausenco

DECISION

CONSIDERATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established