Cape Crushing & Earthmoving Contractors Pty Ltd

[2015] FWCA 2696

[2015] FWCA 2696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cape Crushing & Earthmoving Contractors Pty Ltd
(AG2015/606)

CAPE CRUSHING AND EARTHMOVING CONTRACTORS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2009

Mining industry
COMMISSIONER WILLIAMS	PERTH, 21 APRIL 2015

Application for termination of the Cape Crushing and Earthmoving Contractors Pty Ltd Employee Collective Agreement 2009.

[1] This decision concerns an application by Cape Crushing & Earthmoving Contractors Pty Ltd (the applicant) for termination of the Cape Crushing and Earthmoving Contractors Pty Ltd Employee Collective Agreement 2009 (the Agreement). The application is made under section 225 of the Fair Work Act 2009 (the Act).

[2] A notice of listing was provided to the applicant which directed it to serve a copy of the application and the form F24C with the supporting statutory declaration and a copy of the notice of listing on each employee currently employed under the Agreement.

[3] That notice of listing also advised that an employee currently employed under the Agreement may attend the hearing to give evidence as to their view about the termination of the Agreement and the likely effect of that termination or may provide a written statement regarding these matters to the Commission.

[4] No written statements regarding these matters were received prior to the hearing on 17 April 2015.

[5] At the hearing of this matter a number of employees attended and were invited to and did explain their view about the termination of the Agreement and the likely effect on them.

[6] Submissions were made in support of the application by the applicant.

[7] The nominal expiry date of the Agreement was 14 April 2014.

[8] Mr Stuart Nisbet (Mr Nisbet) the applicant’s Divisional Commercial Manager provided a statutory declaration which explained that the development of the Agreement was that it was to be used in a single crushing operation at Kalgoorlie. However with the growth of the business it had been applied more widely across Western Australia at different locations.

[9] The applicant had been seeking to replace the Agreement through negotiations with employees for a replacement agreement throughout 2014 but to date those attempts had been unsuccessful.

[10] During those negotiations it had been the intention of the applicant to ensure that the overall wage entitlement that each employee would receive under a new agreement would satisfy the better off overall test and they would receive either the same wage or more than they previously received under the Agreement.

[11] The applicant is currently suffering from the significant downturn in the mining industry in Western Australia. There have been significant reductions in revenue and a number of employees have been made redundant in recent times.

[12] The Agreement provides for a flat hourly rate based on a two on one off roster cycle. The Agreement in clause 10 and clause 11 does cater for other roster arrangements and site-specific terms and conditions dependent upon different client’s operational requirements in a highly flexible and non prescriptive manner. Consequently there is no specificity within the Agreement as to what rates will apply on any such alternative rosters.

[13] It is submitted on behalf of the applicant that this lack of specificity in the Agreement is constraining their ability to competitively tender for work for many clients who expect the tenderer’s applicable agreement will specify the particular rates of pay and other allowances that will apply to the work in question.

[14] In addition to his statutory declaration at the hearing of this matter Mr Nisbet gave sworn oral evidence that if the Agreement is terminated the applicant undertook that:

“Cape will undertake to maintain for all current employees their current take home pay for the applicable roster work. We understand that the move from a flat rate to base plus penalty structure will require an additional payment to be made on top of the applicable award rate to maintain their take home pay. This will be confirmed to each employee with a letter which will set out as an example their current roster and current pay and how it compares to their future pay under the base plus penalty structure.” 1

[15] Two employees who gave evidence regarding their views about the application and the likely effect that termination will have on them explained that provided their current take-home pay which they currently received under the Agreement continued to be paid after the Agreement was terminated they would not oppose the application.

Consideration

[16] The relevant sections of the legislation are set out below.

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[17] The matters the Commission must consider in an application such as this are specified in section 226 of the Act.

[18] Firstly there is nothing to suggest that the termination of the Agreement is contrary to the public interest.

[19] Taking into accounts the views of the employees and the employer as explained above and that the circumstances of the employees and the likely effect of the Agreement’s termination on them will be that they will be paid pursuant to the terms and conditions of the various applicable modern awards and receive in addition the amounts referred to in Mr Nisbet’s undertaking above it is in my view appropriate to terminate the agreement.

[20] Consequently the Commission hereby terminates the Agreement and the termination will operate from the date of this decision.

COMMISSIONER

 1   Transcript at PN105.

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<Price code A, AC324063  PR563241>