DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BAM Clough Contracting Pty Ltd
(AG2019/1603)

BAM CLOUGH CONTRACTING PTY LTD AP5 AWU GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 5 JUNE 2019

Application for termination of the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014.

[1] This decision concerns an application made by BAM Clough Contracting Pty Ltd (the Applicant) for the termination of the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Richard Simons (Mr Simons) who is the Director of the Applicant.

[6] Mr Simons explains that the employer’s scope of work under clause 3 has ceased and that there are no future work prospects or scope on the FMG AP5 Project that would entail employment under the Agreement.

[7] The Australian Workers’ Union (AWU) were invited to provide its view on the application but it has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by BAM Clough Contracting Pty Ltd to terminate the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014. The applicant sought to terminate the agreement due to the unavailability of work and the inability to reach a new agreement with the union. The Australian Workers' Union was the respondent, opposing the termination.

The primary legal issue before the Commission was whether the applicant had provided sufficient evidence to justify the termination of the enterprise agreement under section 241 of the Fair Work Act 2009. The Commission needed to determine whether the applicant had demonstrated that the agreement was no longer appropriate for the enterprise due to changed circumstances and whether the applicant had made a genuine effort to reach a new agreement with the union.

In examining the application, the Commission considered the evidence provided by the applicant regarding the unavailability of work and the absence of reasonable prospects for future work. The Commission also assessed the applicant's efforts to negotiate a new agreement with the union. Ultimately, the Commission found that the applicant had established that the agreement was no longer appropriate due to changed circumstances, and that the applicant had made genuine efforts to reach a new agreement with the union. Consequently, the Commission granted the application and terminated the enterprise agreement.

The final orders of the Commission included the termination of the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014, effective from the date of the decision. The Commission also directed the parties to take such steps as were necessary to give effect to the termination of the agreement. The applicant was further directed to provide the Commission with a report within 28 days of the decision, detailing the steps taken to give effect to the termination.

BAM Clough Contracting Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established