Dyno Nobel Asia Pacific Pty Limited
[2022] FWCA 440
•10 FEBRUARY 2022
| [2022] FWCA 440 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Dyno Nobel Asia Pacific Pty Limited
(AG2022/102)
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT BINET | PERTH, 10 FEBRUARY 2022 |
Application for termination of the Dyno Nobel WA Remote Open Cut Services Site Enterprise Agreement 2018 – application granted
Dyno Nobel Asia Pacific Pty Ltd (Dyno Nobel) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Dyno Nobel WA Remote Open Cut Services Sites Enterprise Agreement 2018 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).
The Agreement was approved by Deputy President Beaumont pursuant to section 185 of the FW Act, on 21 March 2019 and, commenced operation on 28 March 2019. The Agreement had a nominal expiry date of 21 March 2021.
The parties to the Agreement are Dyno Nobel and employees of Dyno Nobel employed in the classification of Operator who work in connection with the operations of Dyno Nobel WA remote open cut service sites which include Tropicana, Mt Keith, and any other remote site south of the Tropic of Capricorn where Dyno Nobel WA remote open cut service operations begin on or after 1 July 2018 (with exclusion of Collie) (Employees).
There are no employee organisations are covered by the Agreement.
In support of the Application, Dyno Nobel filed a statutory declaration by Ms Sally Stokes, Employee Relations Manager (Stokes Declaration).
On 27 January 2022, directions were issued with respect to the Application (Directions). The Directions required Dyno Nobel to file an outline of submissions in support of the Application and any evidence on which Dyno Nobel sought to rely. Dyno Nobel was invited to make oral submissions in relation to the Application but were content for the Application to be determined on the papers.
Background
Dyno Nobel supplies industrial explosives and blasting services to the mining industry in Australia, Europe, Indonesia and Papua New Guinea. Servicing surface and underground mining in the thermal coal, metallurgical coal, iron ore and other metals sectors. Dyno Nobel is the second largest supplier in Australia which is the third largest explosives market in the world.
The Agreement has been replaced by the Dyno Nobel WA Surface Operations Enterprise Agreement 2021 (Successor Agreement). According to the Stokes Declaration there are no employees currently covered by the Agreement or plans for the Agreement to cover any employees in the future.
Legislation
Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.
Section 225 of the FW Act provides that:
“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.”
The Agreement has passed its nominal expiry date. Dyno Nobel is an employer covered by the Agreement. I am therefore satisfied that Dyno Nobel has standing to make the Application pursuant to section 225(a) of the FW Act.
Section 226 of the FW Act states:
“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.”
Is it contrary to the public interest to termination the Agreement?
Section 226(a) requires the FWC to be satisfied that it is not contrary to the public interest to terminate the Agreement.
This requires the FWC to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.[1]
The object of the FW Act is set out in section 3 of the FW Act, as follows:
“3. Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
…
(b)ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders;
…
(f)achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;
…”
The specific objects in section 171 of the FW Act inform how the general object in section 3 of the FW Act is to be satisfied in the context of matters dealt with in Part 2-4 of the FW Act:
“171.Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i)making bargaining orders; and
(ii)dealing with disputes where the bargaining representatives request assistance; and
(iii)ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
The public interest is distinct in nature from the interests of those covered by the agreement. The views of those covered by an agreement may be relevant to the exercise of the discretion if they shed light on the effect of the termination on public interest but those views should not be given any independent weight.[2]
The ascertainment of what is not in the public interest does not involve the mere identification of a consequence of the termination of the agreement that is arguably contrary to the public interest. The ascertainment of the public interest may involve balancing countervailing public interests.[3]
There is no positive onus on the applicant to persuade the FWC that there are positive benefits to the public interest arising from the termination. In Geelong Wool Combing Ltd (AIRC) 5 September 2003, Commissioner Wheelan said:
“… the Commission must be persuaded that termination is contrary to the public interest [and] in the absence of any effect of termination which is contrary to the public interest it is not necessary to persuade the Commission that there are positive benefits to the public interest arising from the termination.”
Dyno Nobel submits that there are no matters contrary to the public interest in terminating the Agreement and in fact the termination of the Agreement is in the public interest because:
a.The Agreement has past its nominal expiry date.
b.The Agreement has been replaced by the Successor Agreement.
c.There are no employees covered by the Agreement.
d.Terminating the Agreement will not result in changes in existing employment levels or adversely affect future employment opportunities.
e.Terminating the Agreement would have no impact upon the business of the employer other than removing any risk of potential confusion as to agreement coverage.
Based on the submissions of Dyno Nobel and the evidence before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
What are the views of the Employees covered by the Agreement?
There are currently no employees performing work covered by the Agreement.
What are the views of the Employee Organisation covered by the Agreement?
The Agreement does not cover any employee organisation.
What are the views of the Employer covered by the Agreement?
Dyno Nobel wish to terminate the Agreement.
What are the circumstances of the Employer covered by the Agreement?
Dyno Nobel do not employ any Employees under the Agreement. Employees who were previously covered by the Agreement are now employed under the Successor Agreement.
Is it appropriate to terminate the Agreement taking into all the circumstances?
In assessing the views and circumstances of the parties it is important to remember that:
“Taking into account the views and circumstances of the parties involves far more than an expression of their views in support or opposition to termination. It should involve a reason for their views and the validity of their concerns.”[4]
I am satisfied that the views of Dyno Nobel that the Agreement should be terminated are valid. The Agreement passed its nominal expiry date some time ago and it has been replaced by the Successor Agreement.
Conclusion
For the reasons enunciated above, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
Taking into account all the circumstances, including the views and circumstances of Dyno Nobel, I am satisfied that it is appropriate to terminate the Agreement.
Accordingly, the Agreement is terminated. The termination is to take effect on and from the date of this Decision. An Order to this effect will be issued in conjunction with this Decision.[5]
DEPUTY PRESIDENT
[1] Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40 – 41.
[2] Ibid.
[3] Kellogg Brown & Root Pty Ltd & Ors and Esso Australia Ltd (2005) 139 IR 34 referred to the decision of the High Court of Australia in Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393.
[4] Energy Resources Australia Ltd v Liquor, Hospitality and Miscellaneous Union[2010] FWA 2434, [16].
[5] PR738242.
Printed by authority of the Commonwealth Government Printer
<AE502436, PR738241>
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