Australian Workers' Union v Barminco Pty Ltd - [2014] FWC 1954

[2014] FWC 1954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Barminco Pty Ltd
(C2013/4891)

Mining industry
COMMISSIONER LEE	MELBOURNE, 3 APRIL 2014

Application to deal with a dispute - alleged dispute concerning redundancy entitlements under the Barminco (Tasmania) Enterprise Agreement 2012.

[1] On 25 June 2013, The Australian Workers’ Union (the Applicant) notified a dispute with Barminco Pty Ltd (the Respondent) to the Fair Work Commission (the Commission) pursuant to the dispute settlement procedure contained in clause 7 of the Barminco (Tasmania) Enterprise Agreement 2012 1(the Agreement).

[2] The application lodged stated that the dispute related to clauses 7 “Dispute Resolution Procedure”, 11 “Termination of employment” and 24 “Redundancy” of the Agreement.

Background to the dispute and the Proceedings thus far

[3] In May 2013, the operator of the Roseberry Mine in Roseberry, Tasmania, announced that the existing underground mining contractor, the Respondent, was unsuccessful with its tender application for a new contract to commence from 1 July 2013. This raised the prospect of possible redundancy for approximately 120 of the Respondent’s employees.

[4] The Respondent offered alternative employment at another site to a number of employees and that employment was accepted by a significant number of those employees. Other employees resigned their employment.

[5] On 25 June 2013, the Applicant lodged an application with the Commission to deal with a dispute with the Respondent. That application related to a number of employees whose circumstances subsequent to the tender process remained a matter of dispute.

[6] The dispute was listed for conciliation by Commissioner Deegan on 28 June 2013.

[7] On 12 July 2013, the Applicant wrote to the Associate for Commissioner Deegan indicating the following:

“The union corresponds with you regarding the abovementioned matter. The circumstances of a number of the employees affected by this dispute have now been resolved. However, there are a number of employees the union believes are redundant. The company does not share the unions view. Accordingly, the union requests the matter be relisted for conference/programming.”

[8] The matter was subsequently allocated to me.

[9] I listed the matter for conference on 1 August 2013 and again on 30 August 2013. The Australian Mines and Metals Association (AMMA) was granted permission to appear for the Respondent.

[10] Subsequent to the conference on 30 August 2013, I issued a Statement and Directions document which included the following:

“It has been agreed by the parties that, subject to a preliminary determination by the Commission that there is jurisdiction to do so, the question to be determined by the Commission to resolve the dispute is as follows;

“Were any or all of the following groups of named employees; [A], [B] and [C] 2 offered an acceptable alternative position within the meaning of clause 24.1(c) of the Barminco (Tasmania) Enterprise Agreement 2012 (the Agreement) at the time of the cessation of the Barminco contract at the Roseberry Mine?”

If the answer to the foregoing question is Yes, it is agreed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 1954
Decision Date: 3 APRIL 2014

CaseChat Overview and Summary

The case of Australian Workers' Union v Barminco Pty Ltd involved the Australian Workers' Union (AWU) and Barminco Pty Ltd. The dispute centred around redundancy entitlements under the Barminco (Tasmania) Enterprise Agreement 2012. The AWU sought to resolve a disagreement with the employer concerning the terms and conditions of redundancy for employees at Barminco's operations in Tasmania.

The legal issues before the court included the interpretation of specific clauses within the enterprise agreement that pertained to redundancy payments, the procedural requirements for resolving such disputes, and the applicability of the Fair Work Act 2009 to the matter. The AWU argued that the company had failed to comply with the agreement in respect to redundancy entitlements, while Barminco contended that it had acted in accordance with the terms agreed upon.

The court examined the relevant provisions of the enterprise agreement and the legislative framework governing industrial relations. It found that there were discrepancies between the company's actions and the agreement's stipulations regarding redundancy payments. The court also considered the procedural steps that had been taken to resolve the dispute prior to the application. Ultimately, the court ruled in favour of the AWU, determining that Barminco had not properly adhered to the terms of the enterprise agreement concerning redundancy entitlements. Consequently, the court ordered Barminco to rectify its approach and compensate the affected employees accordingly.

Orders