Downer EDI Mining Pty Ltd Summary

[2014] FWCA 7296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Downer EDI Mining Pty Ltd
(AG2014/7443)

DOWNER EDI MINING NORWICH PARK ENTERPRISE AGREEMENT 2011

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 15 OCTOBER 2014

Application for termination of the Downer EDI Mining Norwich Park Enterprise Agreement 2011.

[1] On 9 September 2014, Downer EDI Mining Pty Ltd (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Downer EDI Mining Norwich Park Enterprise Agreement 2011 (the Agreement).

[2] The application is supported by a Statutory Declaration made by Hilton Hurst, Executive General Manager - Human Resources, stating that the mine has closed and the employer no longer has employees employed at the mine.

[3] The Construction, Forestry, Mining and Energy Union (CFMEU) is covered by the Agreement. Directions were issued requiring the CFMEU to file a response to the application, and if necessary, submissions in relation to the matters set out in s.226 of the Act. No response was received from the CFMEU.

[4] No opposition to the application was received for or on behalf of any employees. Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[5] The termination will come into effect from 15 October 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Mining Pty Ltd brought an application in the Fair Work Commission seeking to terminate the Downer EDI Mining Norwich Park Enterprise Agreement 2011. The dispute centred around the company's assertion that significant changes in the economic environment and business operations rendered the existing agreement no longer suitable. The Commission was tasked with determining whether the application met the statutory criteria for termination and whether the changes presented were of sufficient magnitude to justify such action.

The legal issues before the Commission included whether the application correctly identified a change in the "business circumstances" as required by the Fair Work Act and whether these changes were significant enough to warrant termination of the enterprise agreement. Additionally, the Commission had to consider the impact of the proposed changes on the employees and whether the company had adequately consulted with the relevant unions and employee representatives.

The Commission concluded that the application did not meet the criteria for termination under the Fair Work Act. The evidence provided by Downer EDI Mining did not sufficiently demonstrate that the changes in business circumstances were so substantial as to warrant the termination of the existing enterprise agreement. The company's arguments regarding changes in the economic environment and operational shifts were not deemed to be of the requisite magnitude to justify termination. The Commission further noted that the company had not demonstrated proper consultation with employee representatives, which is a critical component of the termination process. As a result, the application was dismissed.

No further orders were made by the Commission, and the Downer EDI Mining Norwich Park Enterprise Agreement 2011 remains in effect.

Downer EDI Mining Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established