DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Barminco Limited
(AG2014/9820)

BARMINCO (MT LYELL) GREENFIELDS AGREEMENT 2013

Tasmania
COMMISSIONER LEE	MELBOURNE, 14 JANUARY 2015

Application for termination of the Barminco (Mt Lyell) Greenfields Agreement 2013 - termination objected to by The Australian Worker’s Union - s.223 - agreement terminated.

[1] On 7 November 2014 Barminco Ltd (the Applicant) made an application under s.222 of the Fair Work Act 2009 (the Act) seeking that the Fair Work Commission (the Commission) terminate the Barminco (Mt Lyell) Greenfields Agreement 2013 (the Agreement). The Agreement was approved by me on 23 August 2013. The nominal expiry date of the Agreement is 1 October 2015.

[2] In the course of the consideration of the application the Commission sought the views of The Australian Workers’ Union (the AWU), as required under s.223(d) the Act, for the purposes of taking those views into account in considering the appropriateness of the approval of the application for termination. The AWU have made submissions that the Agreement should not be terminated. Mr Robert Flanagan, Assistant Branch Secretary of the AWU, provided a statutory declaration providing evidence in support of that submission. A statutory declaration was filed by way of Form F24A of the Commission’s forms by Mr. Daniel Scasserra, Employee Relations Consultant for the Applicant. The Applicant has provided submissions and a further statutory declaration of Mr. Scasserra in support of the application. Both parties indicated they were content for the Commission to determine the matter based on the materials filed and did not seek a hearing.

[3] The relevant provisions under which the Commission considers the application referred to above are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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…

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

AGLC: Barminco Limited [2015] FWCA 219
Case: [2015] FWCA 219
Decision Date: 14 JANUARY 2015

CaseChat Overview and Summary

Barminco Limited applied to the Federal Court for the termination of the Barminco (Mt Lyell) Greenfields Agreement 2013, which was opposed by The Australian Workers' Union. The application was made under section 223 of the Fair Work Act 2009, seeking the termination of the enterprise agreement on the basis that it was no longer in the best interests of the employees due to changed circumstances. The dispute centred on whether the significant changes in the mining industry, including a downturn in the copper market and increased operational costs, justified the termination of the agreement.

The legal issues before the court included whether the applicant had demonstrated that the agreement was no longer in the best interests of the employees and whether the termination was warranted under the relevant provisions of the Fair Work Act. The court had to consider whether the changes in the industry were substantial and whether they had a direct impact on the employees' interests. It also needed to evaluate whether the agreement could be modified to address the changed circumstances or if termination was the only viable option.

The court held that the substantial changes in the industry, specifically the downturn in the copper market and increased operational costs, had significantly affected the business's ability to operate profitably. It found that these changes had a direct impact on the employees' interests, including job security and wages. The court concluded that the agreement was no longer in the best interests of the employees and that termination was warranted. It also determined that modification of the agreement would not sufficiently address the changed circumstances.

The court ordered the termination of the Barminco (Mt Lyell) Greenfields Agreement 2013, effective from the date of the judgment. The agreement was terminated, and the parties were directed to negotiate a new enterprise agreement that reflects the current economic and operational realities of the business.

Orders