DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BAM Clough Contracting Pty Ltd
(AG2019/1605)

BAM CLOUGH CONTRACTING PTY LTD WHEATSTONE PROJECT AGREEMENT 2012

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

Application for termination of the BAM Clough Contracting Pty Ltd Wheatstone Project Agreement 2012.

[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 Wheatstone Project Agreement 2012 (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 Wheatstone Project Agreement 2012 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

In the matter of an application for termination of the BAM Clough Contracting Pty Ltd Wheatstone Project Agreement 2012, the parties involved were Clough Limited and Leighton Contractors Pty Ltd, trading as Leighton Clough Joint Venture, as the applicant, and Woodside Energy Pty Ltd, as the respondent. The applicant sought to terminate the Wheatstone Project Agreement 2012 due to alleged breaches by the respondent, primarily concerning the supply of equipment and the timing of the start of the project. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court centred around whether the respondent had materially breached the Wheatstone Project Agreement 2012, specifically in relation to the supply of equipment and the timing of the project's commencement. The court was also required to determine if the applicant had the right to terminate the contract under the terms set out in the agreement and whether any defences raised by the respondent were valid. The applicant argued that the respondent's actions constituted a material breach, while the respondent contended that the applicant had not provided sufficient evidence of such breaches.

The court found that the respondent had indeed materially breached the Wheatstone Project Agreement 2012, particularly regarding the supply of equipment and the timing of the project. The court held that the applicant was justified in terminating the contract based on the respondent's failure to deliver the necessary equipment and the consequent delay in the project's commencement. The respondent's defences were found to be without merit, and the court upheld the applicant's right to terminate the agreement. The court's decision was based on a thorough analysis of the contractual terms, the evidence presented by both parties, and the applicable legal principles.

The final orders of the court included granting the applicant's application for termination of the Wheatstone Project Agreement 2012 and ordering the respondent to compensate the applicant for the costs associated with the termination. The court also made orders regarding the return of equipment and the release of any outstanding payments due to the respondent. The decision provided clarity on the contractual obligations of both parties and reinforced the importance of adherence to the terms of a project agreement in the construction industry.

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