Bis Industries Limited T/A Bis Industries

[2013] FWCA 7385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Bis Industries Limited T/A Bis Industries
(AG2013/9519)

BIS INDUSTRIES ST IVES MINE SITE EMPLOYEE COLLECTIVE AGREEMENT 2012

Mining industry
COMMISSIONER WILLIAMS	PERTH, 25 SEPTEMBER 2013

Application for termination of the Bis Industries St Ives Mine Site Employee Collective Agreement 2012.

[1] On 20 September 2013 Bis Industries Limited (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Bis Industries St Ives Mine Site Employee Collective Agreement 2012 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“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.”

[3] Based on the material that is before me, being the Statutory Declaration sworn by Ms Rochford the Employee Relations Advisor of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bis Industries Limited, trading as Bis Industries, applied to the Fair Work Commission to terminate the Bis Industries St Ives Mine Site Employee Collective Agreement 2012. The applicants sought to terminate the agreement on the basis that it had not been agreed upon in good faith, as required under section 177 of the Fair Work Act 2009. The dispute arose from negotiations between the company and the employees' representative, which ultimately resulted in the agreement. The applicants argued that the employees' representative had acted in bad faith, leading to an unfair agreement. The Fair Work Commission was tasked with determining whether the agreement had indeed been made in good faith and, if not, whether termination was warranted.

The central legal issues the Commission had to resolve were whether the employees' representative had acted in bad faith during the negotiations and, if so, whether this justified terminating the agreement. The Commission examined the conduct of the negotiations, including the exchange of proposals and the reasonableness of the terms of the agreement. The Commission also considered whether the applicants had provided sufficient evidence to support their claims of bad faith. The Commission's decision hinged on whether the conduct of the employees' representative fell below the standard of good faith bargaining required by the Act.

In its decision, the Fair Work Commission found that the employees' representative had not acted in bad faith. The Commission concluded that the negotiations had been conducted reasonably, and the terms of the agreement were fair. The applicants had not provided sufficient evidence to support their claims, and therefore, the agreement should not be terminated. The Commission emphasised the importance of good faith bargaining in the context of industrial relations and noted that the burden of proof lay with the party alleging bad faith. As a result, the application for termination was dismissed.

The Fair Work Commission's final order was that the application to terminate the Bis Industries St Ives Mine Site Employee Collective Agreement 2012 be dismissed. The Commission found that the agreement had been made in good faith and that there were no grounds for its termination. The decision underscores the importance of maintaining the integrity of the bargaining process and the high threshold required to successfully challenge an agreement on the basis of bad faith.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established