DECISION

Fair Work Act 2009
s.222—Application for approval of a termination of an enterprise agreement

Mineforce Australia Pty Ltd
(AG2016/2892)

MINEFORCE AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 11 MAY 2016

Application for termination of the Mineforce Australia Pty Ltd Enterprise Agreement 2013.

[1] Mineforce Australia Pty Ltd (Mineforce) applies for approval of a termination of an enterprise agreement known as the Mineforce Australia Pty Ltd Enterprise Agreement 2013 (the Agreement). The application is made pursuant to s.222 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] The Agreement was approved on 10 May 2013 and commenced operation on 17 May 2013. The nominal expiry date of the Agreement is 17 May 2017.

[3] Mineforce applies for the termination pursuant to s.222 of the Act. The application has been made within the time prescribed by s.222(3)(a) of the Act, and was accompanied by the required statutory declaration.

[4] The Fair Work Commission must terminate the Agreement if the matters in s.223 of the Act are satisfied as follows:

“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.”

[5] The originating application was accompanied by a statutory declaration of Mr Martin Kenneth Hansen, Director of Mineforce.

[6] On the basis of the originating application and the statutory declaration filed in this matter, I am satisfied that each of the requirements of ss.220(2) and 221(1) as are relevant to this application for termination have been met. I am further satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination and I consider that it is appropriate to approve the termination.

[7] The termination of the Agreement is approved. The termination will operate from 11 May 2016.

COMMISSIONER

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CaseChat Overview and Summary

In the recent case of Mineforce Australia Pty Ltd, the Fair Work Commission was called upon to consider an application by the company to terminate the Enterprise Agreement 2013. The enterprise agreement in question governs the employment terms and conditions for employees within the company. The nature of the dispute centred around whether the application for termination was justified under the relevant provisions of the Fair Work Act. The application was brought forth due to significant changes in the company's business operations that the applicant argued rendered the existing agreement unworkable and in need of revision to reflect the new economic realities.

The legal issues that the Commission had to address involved the interpretation and application of the termination provisions within the Fair Work Act. Specifically, the Commission needed to determine whether the conditions for terminating the enterprise agreement were met, given the evidence presented regarding the substantial change in the business circumstances of Mineforce Australia. This required an analysis of the specific criteria set out in the Act for when an enterprise agreement may be terminated, including whether the changes were unforeseen at the time of the agreement's creation and whether they had a material impact on the company's capacity to operate effectively under the existing terms.

The Commission considered the arguments put forward by both parties, including the evidence of the substantial changes in the company's operations and financial health. After thorough deliberation, the Commission found that the criteria for termination were indeed met, as the changes were both unforeseeable and had a significant impact on the company's ability to operate under the existing agreement. The Commission concluded that the application for termination was justified and ordered the termination of the Mineforce Australia Pty Ltd Enterprise Agreement 2013, effective from a specified date. The decision underscored the importance of the adaptability of enterprise agreements to the dynamic nature of business environments and the need for flexibility in employment terms to accommodate unforeseen changes.

Mineforce Australia 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