Vimba Warta Civil and Mining Pty Ltd

[2022] FWCA 1088

[2022] FWCA 1088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Vimba Warta Civil and Mining Pty Ltd

(AG2022/536)

Vimba Warta Civil & Mining Enterprise Agreement 2017

Mining industry
COMMISSIONER HAMPTON	ADELAIDE, 29 MARCH 2022

Application for termination of the Vimba Warta Civil and Mining Pty Ltd.

1. This decision concerns an application by Vimba Warta Civil and Mining Pty Ltd (Vimba Warta) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Vimba Warta Civil & Mining Enterprise Agreement 2017 (the Agreement). The Agreement was approved by the Commission on 26 February 2018.[1] The Agreement commenced operation on 26 February 2018 and has a nominal expiry date of 26 February 2022.

1. I observe that Vimba Warta is an Indigenous company operating from Port Augusta in South Australia. It provides labour hire services in regional and remote communities as part of its promotion of long term, meaningful employment for Indigenous men and women.

1. To date, Vimba Warta has concentrated upon services to mining and civil works and is currently seeking to expand the range of industries to be covered by its employment initiatives. This sets much of the context for the present application.

1. A hearing by telephone was conducted in this matter on 29 March 2022. Ms George of EMA Legal appeared with permission, along with Mr Antonio Scaffidi-Muta and Ms Ainslie Vilato for Vimba Warta. At the conclusion of that hearing, I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

1. The FW Act relevantly provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)       one or more of the employers covered by the agreement;
(b)       an employee covered by the agreement;
(c)       an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

1. The application was accompanied by a statutory declaration of Mr Scaffidi-Muta, Director of Vimba Warta. During the hearing, Vimba Warta also expanded on the grounds for the application to terminate the Agreement which included contentions to the effect of the following:

·The Agreement passed its nominal expiry date on 26 February 2022;

·The business is expanding into different industries not covered by this Agreement or the Mining Industry Award 2020, which underpinned the Agreement;

·Terminating the Agreement would allow Vimba Warta to assign (develop and agree) employee conditions based upon the relevant modern award, which will better protect employee rights and ensure conditions relevant to the other industry settings;

·Current employees were paid higher wage rates than specified in either the Agreement or the underpinning safety net award and Vimba Warta would continue to do so; and

·Vimba Warta will ensure that current (and future) employees presently covered by the Agreement do not suffer a reduction to their conditions when reverting to the relevant modern award and in all cases any changes will be beneficial to the employees.

1. At the invitation of the Commission, Vimba Warta provided a formal undertaking that current and future employees would not be disadvantaged by the termination of the Agreement. This is consistent with the arrangements outlined above and I have accepted that undertaking.

1. Given the status of the Agreement, Vimba Warta is entitled to apply for its termination pursuant to s.225 of the FW Act.

1. In the lead up to the hearing of this matter, directions were issued requiring Vimba Warta to provide the Notice of Listing to the relevant employees to inform them of proceedings and provide them an opportunity to make a contribution or participate in the hearing. No employee or anyone on behalf of the employees has contact the Commission wishing to be heard or provide a submission. I am satisfied that all relevant affected parties support, or at least do not oppose, the application.

1. I accept that a valid application has been made. Having had regard to the material provided with the application and during the hearing, including the undertaking given by Vimba Warta, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. I also find that it is appropriate in all of the circumstances, including having regard to the impact of the termination and the views of the parties, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

1. The Agreement is terminated, and the termination will take effect on and from 11:59 pm on 5 April 2022.

COMMISSIONER

[1] [2018] FWCA 1216.

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