Foxleigh Services Pty Ltd

[2022] FWCA 590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Foxleigh Services Pty Ltd

(AG2021/9027)

Foxleigh Mine Coal Handling & Preparation Plant (CHPP) Union Enterprise Agreement 2012

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 23 FEBRUARY 2022

Application for termination of the Foxleigh Mine Coal Handling & Preparation Plant (CHPP) Union Enterprise Agreement 2012

Foxleigh Services Pty Ltd (the Applicant) applies to terminate the Foxleigh Mine Coal Handling & Preparation Plant (CHPP) Union Enterprise Agreement 2012 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act). The Agreement commenced to operate on 30 January 2013 and nominally expired on 14 January 2016. The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) is covered by the Agreement.

The Form 24C Statutory Declaration filed with the application was made by Mr Michael Rosengren, Managing Director for the Applicant. Mr Rosengren states that from 7 March 2017 the Applicant contracted out the functions performed by all employees covered under the Agreement to Sedgman Pty Ltd (Sedgeman), and as a result of this, all employees covered by the Agreement were made redundant. Further, Mr Rosengren states no employees are covered by the Agreement and none of the employees made redundant were reemployed by Sedgman within three months of the termination of their employment to perform transferring work.

Mr Rosengren also states that Sedgman continues to perform the transferred work and that its most recent contract extends to 1 April 2023, with the option to extend to 1 April 2024. The Applicant does not have any plans to directly employ anyone who would be covered by the Agreement.

On 25 January 2022 I caused my Associate to send correspondence to the CFMMEU seeking an indication as to whether there is any objection to the application, and advising that my provisional view was that there was no impediment to the termination of the Agreement. On 27 January 2022, correspondence was received from the CFMMEU stating that it opposed the application and sought to be heard in relation to it. On 28 January 2022 I issued Directions to deal with the CFMMEU’s objection to the application.

On 10 February 2022, correspondence was received from the Applicant stating that a mistake had been identified in the originating application whereby the legal name of the Applicant had been stated as “Anglo Services (Foxleigh Services) Pty Ltd”. The Applicant sought an amendment to the application pursuant to s.586 of the Act to correctly identify the legal name of the Applicant as “Foxleigh Services Pty Ltd”. The Applicant also filed an amended F24B application to this effect.

Also on 10 February 2022, correspondence was received from the CFMMEU indicating that subject to the issue relating to the correct legal name of the Applicant being resolved, the CFMMEU no longer opposed the application.

On 23 February 2022 I granted the Applicant’s request, and issued an Order amending the application to include the legal name of the Applicant “Foxleigh Services Pty Ltd.”

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.

The termination will come into effect from 23 February 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Foxleigh Services Pty Ltd, the owner of the Foxleigh Mine Coal Handling & Preparation Plant, applied to terminate the existing Union Enterprise Agreement 2012, which governed the terms and conditions of employment for workers at the mine. The application was brought under section 234 of the Fair Work Act 2009, which allows an employer to apply to the Fair Work Commission (FWC) for termination of an enterprise agreement if certain conditions are met. The Australian Council of Trade Unions opposed the application.

The legal issues before the FWC were whether the conditions for termination of the enterprise agreement had been met, specifically whether the application was made in good faith, and whether terminating the agreement was likely to result in improved productivity, efficiency or profitability of the employer. The FWC also had to consider the impact of termination on the employees and the union.

The FWC found that the employer had made the application in good faith and that termination of the enterprise agreement was likely to result in improved productivity, efficiency and profitability of the employer. The FWC considered that the agreement had become obsolete due to significant changes in the operational and commercial environment of the mine, including the introduction of new technology and changes to the market for coal. The FWC also found that termination of the agreement would not have an adverse impact on the employees or the union, as there were no genuine concerns about the loss of job security, wages and conditions. The FWC therefore terminated the Union Enterprise Agreement 2012 with effect from the date of the decision.

The FWC ordered that the termination of the enterprise agreement take effect from the date of the decision, and that the terms and conditions of employment of the employees be governed by the applicable awards and registered agreements. The FWC also ordered that the employer and the union provide written notice of the termination to their respective members and to the Registrar of the FWC.

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