FMG Personnel Services Pty Ltd

[2014] FWCA 1538

[2014] FWCA 1538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

FMG Personnel Services Pty Ltd
(AG2014/3701)

CRUSHING SERVICES INTERNATIONAL CHRISTMAS CREEK OPERATIONS EMPLOYEE COLLECTIVE AGREEMENT 2011-2015

Mining industry
COMMISSIONER WILLIAMS	PERTH, 5 MARCH 2014

Application for termination of the Crushing Services International Christmas Creek Operations Employee Collective Agreement 2011-2015.

[1] This decision concerns an application by FMG Personnel Services Pty Ltd (FMG) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Crushing Services International Christmas Creek Operations Employee Collective Agreement 2011-2015 (the Agreement). The Agreement is a single-enterprise agreement which was approved on 24 May 2013 and has a nominal expiry date of 26 April 2014.

[2] Section 219 of the Act provides the employers and the employees covered by the Agreement may jointly agree to terminate it and that this agreement will have no effect unless approved by the Fair Work Commission (the Commission) under s.223 of the Act.

[3] Section 223 of the Act provides when the Commission must terminate an enterprise agreement.

“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.”

[4] The application to terminate the Agreement was lodged on 14 February 2014 and was accompanied by a statutory declaration of Ms Melanie Atkinson (Ms Atkinson), FMG Human Resources Superintendent Christmas Creek Mine Site, in support of the application.

[5] The evidence is that Crushing Services International Pty Ltd (Crushing Services) had been contracted by FMG to perform services at the Christmas Creek mine which is owned and operated by the Fortescue Metals Group Limited of which FMG is a wholly owned subsidiary. Late in 2013 FMG terminated its contract with Crushing Services and took over those services and then offered employment to 88 of the Crushing Services employees who had been covered by the Agreement. Consequently these employees were transferring employees. I accept based on this that FMG became covered by the Agreement and so is able to make this application under s.222(1) of the Act.

[6] Ms Atkinson’s evidence explained the comprehensive process that had been undertaken to notify employees of the process for voting to approve the proposed termination of the Agreement. The result of the ballot of the 88 FMG employees covered by the Agreement was that 100% of the 79 employees who voted agreed to terminate the Agreement.

[7] Separately another statutory declaration from Mr Lee van der Burgt confirms that Crushing Services agrees to the termination of the Agreement and confirmed that they no longer have any employees that are covered by the Agreement.

[8] Consequently on the basis of the evidence provided, I am satisfied that FMG has complied with the requirements of s.220(2) and s.221 of the Act and that in accordance with s.223(c) of the Act there are no other reasonable grounds for believing that the employees have not agreed to the termination. I note there is no employee organisation covered by the Agreement. Therefore in accordance with s.223 of the Act, I must approve the termination of the Agreement.

[9] The termination will take effect on 5 March 2014.

COMMISSIONER

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