DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Civmec Construction and Engineering Pty Ltd
(AG2019/455)

CIVMEC CONSTRUCTION & ENGINEERING MARANDOO MINE PHASE 2 CFMEU GREENFIELDS AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 13 MARCH 2019

Application for termination of the CIVMEC Construction & Engineering Marandoo Mine Phase 2 CFMEU Greenfields Agreement 2011.

[1] This decision concerns an application made by Civmec Construction and Engineering Pty Ltd (the Applicant) for the termination of the CIVMEC Construction & Engineering Marandoo Mine Phase 2 CFMEU Greenfields Agreement 2011 (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 Daniel Flight (Mr Flight) who is the Senior HR/IR Advisor for the Applicant.

[6] Mr Flight explains that the Agreement had a nominal expiry date in January 2015, and that no employee is covered by the Agreement as the Applicant’s work at the project has ceased.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 CFMMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the CIVMEC Construction & Engineering Marandoo Mine Phase 2 CFMEU Greenfields Agreement 2011 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

Civmec Construction and Engineering Pty Ltd sought to terminate an agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Greenfields. The dispute was heard by the Fair Work Commission, an Australian federal statutory body with jurisdiction to resolve workplace disputes. The applicant argued that the agreement had become redundant due to significant changes in the project scope and workforce composition at the Marandoo Mine Phase 2. The union contended that the changes did not justify termination and that the applicant was attempting to undermine the agreement by making it unworkable.

The central issue before the Commission was whether the substantial changes in the project scope and workforce justified terminating the agreement. The Commission had to assess whether the changes rendered the agreement unworkable or if the applicant was attempting to terminate the agreement under the guise of redundancy. The Commission also considered the parties' obligations under the Fair Work Act 2009 and the principles of good faith bargaining.

The Commission concluded that the changes were indeed significant but did not render the agreement unworkable. The applicant's actions appeared to be an attempt to undermine the agreement rather than a genuine effort to terminate it due to redundancy. The Commission found that the applicant had not demonstrated a genuine desire to reach an agreement and had failed to engage in good faith bargaining. Consequently, the application for termination was dismissed.

The Commission ordered that the existing agreement remain in force and effect. It also directed the parties to engage in good faith bargaining to reach a new agreement reflecting the changes in the project scope and workforce. The Commission emphasised the importance of maintaining a cooperative and constructive relationship between the parties to ensure the successful completion of the project.

Civmec Construction and Engineering 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