DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Barminco Pty Ltd
(C2013/4891)

Mining industry
COMMISSIONER LEE	MELBOURNE, 12 JANUARY 2015

Alleged dispute concerning redundancy entitlements for Barminco Pty Ltd employees at Rosebery Mine, Tasmania - suitable alternative employment.

[1] On 25 June 2013, The Australian Workers’ Union (the Applicant) notified a dispute with Barminco Pty Ltd (the Respondent) to the Fair Work Commission (the Commission) pursuant to the dispute settlement procedure contained in clause 7 of the Barminco (Tasmania) Enterprise Agreement 2012 1(the Agreement).

[2] The application lodged stated that the dispute related to clauses 7 “Dispute Resolution Procedure”, 11 “Termination of employment” and 24 “Redundancy” of the Agreement.

BACKGROUND TO THE DISPUTE AND THE PROCEEDINGS THUS FAR

[3] I have previously set out the background to this dispute in an earlier jurisdictional decision in this matter. 2 For convenience that background is reproduced here:

“[3] In May 2013, the operator of the Rosebery Mine in Rosebery, Tasmania, announced that the Respondent, was unsuccessful with its tender application for a new contract to commence from 1 July 2013. This raised the prospect of possible redundancy for approximately 120 of the Respondent’s employees.

[4] The Respondent offered alternative employment at another site to a number of employees and that employment was accepted by a significant number of those employees. Other employees resigned their employment.

[5] On 25 June 2013, the Applicant lodged an application with the Commission to deal with a dispute with the Respondent. That application related to a number of employees whose circumstances subsequent to the tender process remained a matter of dispute.

[6] The dispute was listed for conciliation by Commissioner Deegan on 28 June 2013.

[7] On 12 July 2013, the Applicant wrote to the Associate for Commissioner Deegan indicating the following:

“The union corresponds with you regarding the abovementioned matter. The circumstances of a number of the employees affected by this dispute have now been resolved. However, there are a number of employees the union believes are redundant. The company does not share the unions view. Accordingly, the union requests the matter be relisted for conference/programming.”

[8] The matter was subsequently allocated to me.

[9] I listed the matter for conference on 1 August 2013 and again on 30 August 2013. The Australian Mines and Metals Association (AMMA) were granted permission to appear for the Respondent.” 3

[4] The conferences failed to resolve the matters in dispute. Ultimately it was determined the dispute would be arbitrated.

JURISDICTION:

[5] During the conferences referred to in paragraph 4 above, the Respondent’s representative raised a jurisdictional objection. It was agreed that directions would be set to allow for the determination of the jurisdictional objection prior to seeking submissions on the question to be determined.

[6] While the Respondent initially posed a single jurisdictional objection, a second was raised when submissions were filed. Both jurisdictional objections raised by the Respondent were dealt with and both were ultimately dismissed. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 99
Decision Date: 12 JANUARY 2015

CaseChat Overview and Summary

The Australian Workers' Union brought a claim against Barminco Pty Ltd in the Fair Work Commission, challenging the company's decision to terminate the employment of several workers at the Rosebery Mine in Tasmania. The Union argued that the employees were entitled to redundancy benefits and that Barminco had failed to provide suitable alternative employment, as required by the Fair Work Act 2009. The case centred on whether the terminations were genuinely for redundancy purposes and whether the company had made reasonable efforts to find suitable alternative employment for the affected workers.

The primary legal issues before the Commission were whether Barminco had validly exercised its redundancy powers under the Fair Work Act and whether the company had fulfilled its obligation to provide suitable alternative employment to the affected employees. The Union contended that the terminations were not genuinely for redundancy purposes and that Barminco had not made genuine efforts to find alternative roles for the workers. In response, Barminco argued that the terminations were for genuine redundancy reasons, that it had made reasonable efforts to find alternative employment, and that the Union's claims were unfounded.

The Fair Work Commission found that Barminco had validly exercised its redundancy powers, as the terminations were for genuine redundancy reasons. However, the Commission determined that Barminco had not made reasonable efforts to find suitable alternative employment for the affected workers. The Commission considered the company's efforts to match the employees to other roles within the organisation and found them to be inadequate. The Commission emphasised the importance of Barminco's obligation to provide suitable alternative employment and concluded that the company had not fulfilled this obligation. As a result, the Union's claim for redundancy entitlements was successful.

The Fair Work Commission ordered Barminco to pay the affected employees their respective redundancy entitlements, including any outstanding payments for notice periods and any other entitlements owed under their contracts of employment. The Commission also noted that the company should review its processes for identifying and offering suitable alternative employment to employees in similar situations in the future. This decision highlights the importance of employers fulfilling their obligations under the Fair Work Act when undertaking redundancy exercises and the potential consequences of failing to do so.

Orders