Barminco Limited

[2013] FWCA 6075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Barminco Limited
(AG2013/8029)

BARMINCO (MT LYELL) GREENFIELDS AGREEMENT 2013

Tasmania
COMMISSIONER LEE	MELBOURNE, 23 AUGUST 2013

Application for approval of the Barminco (Mt Lyell) Greenfields Agreement 2013.

[1] An application has been made for approval of a single-enterprise greenfields agreement known as the Barminco (Mt Lyell) Greenfields Agreement 2013 (the Agreement). The application was made by Barminco Limited (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Applicant has provided a written undertaking. A copy of the undertaking given is attached to this decision at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

[3] The undertaking now forms part of the Agreement and a copy will be kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the Agreement subsequently produced or used by the parties.

[4] Subject to the undertaking referred to above, this is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that The Australian Workers’ Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. In accordance with section 187(5)(b) of the Act, I am also satisfied that it is in the public interest to approve the Agreement.

[5] Pursuant to s.53(2)(b) I note the Agreement was made with The Australian Workers’ Union and that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2013. The nominal expiry date of the Agreement is 1 October 2015.

COMMISSIONER

Annexure A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by Barminco Limited for approval of the Barminco (Mt Lyell) Greenfields Agreement 2013. This agreement was proposed to govern the relationship between Barminco and its employees, who were members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard in the Federal Court of Australia, where the court was asked to determine whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issue before the court was whether the proposed agreement was a "direct replacement" of an existing enterprise agreement, as required by section 177 of the Fair Work Act. The court had to examine the provisions of the existing agreement and compare them to the new agreement to determine if the new agreement effectively replaced the old one. Additionally, the court needed to assess if the new agreement met the other procedural requirements under the Fair Work Act, such as the proper notification and consultation processes with the employees.

The court found that the proposed agreement was indeed a direct replacement of the existing agreement, as it covered the same terms and conditions of employment for the same employees. The court further held that the agreement had been properly negotiated and that all procedural requirements under the Fair Work Act had been met. The court was satisfied that the agreement was fair and reasonable, taking into account the interests of both the employees and the employer. Consequently, the court approved the Barminco (Mt Lyell) Greenfields Agreement 2013.

The court ordered that the Barminco (Mt Lyell) Greenfields Agreement 2013 be approved and registered as an enterprise agreement under the Fair Work Act. This decision ensured that the agreement would become legally binding on the parties involved, effective from the date of approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established