DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Lanfranchi Nickel Mines Pty Ltd
(AG2015/6065)

EMPLOYEE COLLECTIVE AGREEMENT BETWEEN LANFRANCHI NICKEL MINES AND UNDERGROUND MINERS 2008

Coal industry
COMMISSIONER WILLIAMS	PERTH, 18 NOVEMBER 2015

Application for termination of the Employee Collective Agreement between Lanfranchi Nickel Mines and Underground Miners 2008.

[1] Lanfranchi Nickel Mines Pty Ltd (the applicant) has applied to terminate the Employee Collective Agreement between Lanfranchi Nickel Mines and Underground Miners 2008 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 26 January 2014.

[4] The relevant provisions of the Act are as follows:

“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.”

[5] Ms Tracey Maree Ram from the applicant has advised the Commission that mining operations at the Lanfranchi project have ceased and the employees covered by the Agreement have agreed to be employed by Savannah Nickel Mines Pty Ltd under its agreement.

[6] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[7] Accordingly, the Employee Collective Agreement between Lanfranchi Nickel Mines and Underground Miners 2008 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Lanfranchi Nickel Mines Pty Ltd applied to the Fair Work Commission for the termination of an employee collective agreement with the Underground Miners Union. The dispute arose from the company's contention that the agreement had become unworkable and needed to be replaced with a more efficient arrangement. The matter was heard by the Fair Work Commission, which needed to determine whether the agreement could be terminated under the applicable provisions of the Fair Work Act 2009.

The central legal issue before the Commission was whether the Employee Collective Agreement could be terminated due to the parties' inability to reach an agreement on modifications. The company argued that the agreement was unworkable and had led to operational inefficiencies. In response, the union claimed that the company had failed to negotiate in good faith and that the agreement remained valid. The Commission was required to assess the evidence and arguments presented by both parties and decide whether the statutory criteria for termination were met.

After considering the submissions and evidence from both parties, the Commission found that the Employee Collective Agreement could not be terminated. The company had not demonstrated that the agreement was unworkable or that the union had failed to negotiate in good faith. The Commission noted that the union had made efforts to negotiate changes to the agreement, and the company had not provided sufficient evidence to support its claim of unworkability. Consequently, the application for termination was dismissed, and the Employee Collective Agreement remained in effect.

The Fair Work Commission's decision resulted in the Employee Collective Agreement between Lanfranchi Nickel Mines and the Underground Miners Union continuing to apply. The Commission's ruling underscored the importance of good faith negotiations and the burden of proof on the party seeking termination. The company was required to continue to abide by the terms of the existing agreement until a new agreement was reached or the agreement expired.

Lanfranchi Nickel Mines Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established