DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Barminco Limited T/A Barminco
(AG2016/5361)

BARMINCO TASMANIA ENTERPRISE AGREEMENT 2016

Mining industry
COMMISSIONER LEE	MELBOURNE, 21 OCTOBER 2016

Application for approval of the Barminco Tasmania Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Barminco Tasmania Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Barminco Limited T/A Barminco. The Agreement is a single enterprise agreement.

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

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 October 2016. The nominal expiry date of the Agreement is 27 October 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application for the approval of the Barminco Tasmania Enterprise Agreement 2016 was brought before the Fair Work Commission by Barminco Limited, trading as Barminco, and the Construction, Forestry, Maritime, Mining and Energy Union. The matter concerned the procedural fairness of the process by which the agreement was negotiated and subsequently certified, with the union contesting the validity of the agreement on several grounds. The commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues central to the case revolved around whether the agreement was genuinely negotiated, if the necessary procedural fairness was observed during the negotiation process, and whether the agreement complied with the requirements set forth in the Fair Work Act. Specifically, the union argued that the process lacked procedural fairness due to alleged misrepresentations and the exclusion of certain employee groups from the negotiation process. The commission had to scrutinise these claims to determine if the agreement should be certified and approved.

In reaching its decision, the commission examined the evidence presented by both parties and the documentation related to the negotiation process. It considered whether the union had genuinely participated in the negotiations and if the agreement was a product of those negotiations. The commission found that the union had indeed participated and that the agreement was negotiated in good faith. Additionally, it concluded that the process was procedurally fair, and the agreement met the statutory criteria for approval. The commission certified the agreement, thereby resolving the union's objections.

The final orders of the commission approved the Barminco Tasmania Enterprise Agreement 2016, certifying it as meeting the requirements of the Fair Work Act. The union's application to set aside the agreement was dismissed, and the agreement was approved as a valid and binding enterprise agreement.

Barminco Limited T/A Barminco

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established