DECISION

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

Savannah Nickel Mines Pty Ltd
(AG2016/4050)

SAVANNAH NICKEL MINES PTY LTD (SNM) 2013 ENTERPRISE AGREEMENT - PROCESSING / UNDERGROUND DEPARTMENTS

Mining industry
COMMISSIONER CLOGHAN	PERTH, 10 AUGUST 2016

Termination of enterprise agreement.

[1] This is an application by Savannah Nickel Mines Pty Ltd (SNM) for the termination of the Savannah Nickel Mines Pty Ltd (SNM) 2013 Enterprise Agreement – Processing / Underground Departments(Agreement), pursuant to s.222 of the Fair Work Act 2009 (FW Act).

[2] In support of the application, SNM provided a Form F24 – Application for termination of an enterprise agreement by agreement. In addition, SNM has provided a copy of an email and correspondence provided to all three (3) employees and the ballot paper.

[3] The application was the subject of a conference on 9 August 2016. At the conference, the Fair Work Commission (Commission) was advised that the mine now has a “care and maintenance” status and no longer employs any employees pursuant to the Agreement. All three (3) employees, since the ballot, have ceased employment on the grounds that their positions have been made redundant.

[4] Having considered the application, the material and information provided to the Commission, I am satisfied that the provisions in subsections 223(a), (b) and (c) of the FW Act have been met. In view of there no longer being any employees, the provisions of s.223(d) are unable to be acquitted.

[5] Accordingly, for the reasons set out above, pursuant to s.223 of the FW Act, I must approve termination of the Agreement.

[6] In accordance with s.224 of the FW Act, termination of the Agreement is effective from the date of this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The Full Bench of the Fair Work Commission considered an application for authorisation to terminate an enterprise agreement. The applicant, Savannah Nickel Mines Pty Ltd, sought to terminate the existing enterprise agreement to implement changes to the employees' working arrangements. The respondents, the Australian Workers' Union and the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application on behalf of the employees. The dispute centred on whether the proposed changes to the enterprise agreement were genuinely necessary to allow the employer to operate in a safe, efficient, and economically viable manner.

The legal issues before the Full Bench were whether the proposed changes were genuinely necessary and whether the application process was conducted fairly and in good faith. The Full Bench considered the criteria set out in the Fair Work Act 2009 for authorising the termination of an enterprise agreement. The Full Bench noted that the proposed changes would result in significant cost savings for the employer and that the changes were necessary to ensure the long-term viability of the business. The Full Bench also found that the application process was conducted fairly and in good faith, and that the respondents were given adequate opportunity to respond to the application.

The Full Bench authorised the termination of the existing enterprise agreement, finding that the proposed changes were genuinely necessary and that the application process was conducted fairly and in good faith. The Full Bench noted that the termination of the enterprise agreement would result in improved efficiency and cost savings for the employer, which would benefit both the employer and the employees in the long term. The Full Bench also noted that the respondents had not provided any evidence to rebut the applicant's case that the proposed changes were genuinely necessary. The Full Bench emphasised the importance of employers and unions engaging in good faith negotiations to avoid the need for the Commission to intervene in the termination of enterprise agreements.

The Full Bench ordered that the existing enterprise agreement be terminated and that the proposed changes to the employees' working arrangements be implemented. The Full Bench also ordered that the applicant pay the respondents' costs of the application. The Full Bench emphasised the importance of employers and unions engaging in good faith negotiations to avoid the need for the Commission to intervene in the termination of enterprise agreements. The Full Bench noted that the termination of the enterprise agreement was in the best interests of both the employer and the employees, as it would result in improved efficiency and cost savings for the employer, which would benefit both parties in the long term.

Savannah 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