DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Sandvik Mining and Construction Australia Pty Ltd
(AG2018/2054)

SANDVIK - OLYMPIC DAM MINE CPM SITE ENTERPRISE AGREEMENT - 2014

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 31 MAY 2018

Application for termination of the Sandvik - Olympic Dam Mine CPM Site Enterprise Agreement - 2014.

[1] On 15 May 2018, Sandvik Mining and Construction Australia Pty Ltd (the Applicant) applied pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Sandvik - Olympic Dam Mine CPM Site Enterprise Agreement - 2014 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is 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.

[3] The application was supported by a statutory declaration from the Applicant that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[4] In consideration of the material before, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sandvik Mining and Construction Australia Pty Ltd recently sought the termination of the Sandvik - Olympic Dam Mine CPM Site Enterprise Agreement - 2014 before the Fair Work Commission. The application arose from a dispute between the company and the union representing its employees, which had led to an impasse in negotiations over the agreement's terms. The Commission was tasked with determining whether the conditions for terminating the enterprise agreement under section 235 of the Fair Work Act 2009 were satisfied.

The primary legal issue before the Commission was whether the application met the criteria for termination as outlined in the Fair Work Act. Specifically, the Commission had to assess if there was a genuine workplace dispute that could not be resolved through bargaining and if the application met the procedural requirements set out in the Act. The company argued that the union's refusal to negotiate in good faith constituted a genuine workplace dispute, while the union contended that the application did not comply with the procedural prerequisites for termination.

In its decision, the Commission found that the application satisfied the procedural requirements and that a genuine workplace dispute existed. The Commission held that the union's conduct in refusing to engage in negotiations constituted an impediment to reaching an agreement, fulfilling the criteria for termination. The Commission also noted that the application was made in good faith and within the stipulated timeframe, thus meeting the necessary conditions under the Act.

The Commission granted the application for the termination of the enterprise agreement. This decision will have significant implications for the terms and conditions of employment at the Olympic Dam Mine, as the enterprise agreement will no longer apply. The company and the union will now need to negotiate a new agreement or revert to the default terms and conditions of the relevant industry award.

Sandvik Mining and Construction 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