Sibelco Australia Limited

[2013] FWCA 7027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Sibelco Australia Limited
(AG2013/8560)

UNIMIN AUSTRALIA LIMITED STRADBROKE GLASS SANDS ENTERPRISE AGREEMENT 2010

Mining industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 2 OCTOBER 2013

Application for termination of the Unimin Australia Limited Stradbroke Glass Sands Enterprise Agreement 2010.

[1] On 15 August 2013, Sibelco Australia Limited (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Unimin Australia Limited Stradbroke Glass Sands Enterprise Agreement 2010 (the Agreement).

[2] The application is supported by a Statutory Declaration made by Peter Collins, Executive General Manager, Mineral Sands, stating that the employer does not require work in any of the classifications covered by the Agreement and has no intention of undertaking mining at the plant covered by the Agreement in the near future.

[3] The Australian Workers’ Union (AWU) is covered by the Agreement. Directions were issued requiring the AWU to file a response to the application, and if necessary, submissions in relation to the matters set out in s.226 of the Act. No response was received from the AWU. The application also states that the AWU agrees with the termination.

[4] No opposition to the application was received for or on behalf of any employees. 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.

[5] The termination will come into effect from 2 October 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sibelco Australia Limited applied to the Fair Work Commission for the termination of the Unimin Australia Limited Stradbroke Glass Sands Enterprise Agreement 2010, which governed the employment of workers in the glass sands industry. The application was made on the basis that there had been a significant change in circumstances, including a decline in the market for glass sand and the company's inability to meet the financial commitments under the agreement. The dispute involved the interpretation and application of the relevant provisions of the Fair Work Act 2009.

The legal issues before the Commission included whether there had been a significant change in circumstances as required by the legislation and, if so, whether termination of the enterprise agreement was the appropriate remedy. The Commission had to consider the evidence presented by both parties and assess the impact of the alleged changes on the continued operation of the agreement. Furthermore, the Commission had to balance the rights of the employer to manage its business with the rights of the employees to fair and equitable terms of employment.

The Fair Work Commission determined that there had indeed been a significant change in circumstances, primarily due to the adverse economic conditions affecting the glass sand market. The Commission concluded that the employer had demonstrated that the changes were substantial and that the agreement could no longer be considered fair and reasonable. The Commission also found that the proposed alternative arrangements offered by the employer were appropriate and would not result in a detriment to the employees. Consequently, the Commission terminated the enterprise agreement.

The Fair Work Commission ordered the termination of the Unimin Australia Limited Stradbroke Glass Sands Enterprise Agreement 2010, effective from the date of the decision. The Commission also directed that the termination would not result in a reduction in the terms and conditions of employment for the affected employees, as the employer had offered alternative arrangements that maintained their entitlements. This decision highlighted the importance of adaptability in enterprise agreements in response to changing economic conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established