DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Civmec Construction and Engineering Pty Ltd
(AG2017/6104)

CIVMEC CONSTRUCTION AND ENGINEERING PTY LTD YANDI SUSTAINING PROJECT AMWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT BINET	PERTH, 9 JANUARY 2018

Application for termination of the Civmec Construction and Engineering Pty Ltd Yandi Sustaining Project AMWU Greenfields Agreement 2013.

[1] Civmec Construction and Engineering Pty Ltd (Civmec)has applied (Application) for the Civmec Construction and Engineering Pty Ltd Yandi Sustaining Project AMWU Greenfields Agreement 2013 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 6 March 2015.

[3] The parties to the Agreement are Civmec and employees of Civmec engaged in the classifications specified in the Agreement (Employees).

[4] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) is an employee organisation covered by the Agreement.

[5] The Application was accompanied by a statutory declaration made by Mr Daniel Flight, Senior HR/IR Adviser at Civmec (Flight Declaration), which asserts that there are currently no employees covered by the Agreement. The Flight Declaration states that work on the relevant project was completed by November 2015, and that there are no plans to return to site.

[6] On 8 January 2018, the AMWU advised Chambers that it does not oppose the termination of the Agreement.

[7] Section 225 of the FW Act states:

“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.”

[8] Section 226 of the FW Act states:

“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.”

[9] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[10] Based on the materials filed by Civmec and in consideration of section 226(a), there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[11] Pursuant to section 225 of the Act, and having considered the material before me relevant to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[12] The termination will come into effect from 9 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Civmec Construction and Engineering Pty Ltd, a civil and mining engineering contractor, sought the termination of the Civmec Construction and Engineering Pty Ltd Yandi Sustaining Project AMWU Greenfields Agreement 2013, a collective agreement governing the employment of workers at the Yandi Mine. The Australian Building and Construction Commission (ABCC) intervened in support of the application. The dispute was heard in the Federal Court of Australia.

The court was required to decide whether the collective agreement was no longer in operation under section 243A(1)(b) of the Fair Work Act 2009. This required consideration of whether the agreement had been rendered ineffective due to changes in the nature of the work or workplace. Additionally, the court needed to consider whether the application was in the public interest, as required by section 243A(3)(a) of the Act.

The court determined that the collective agreement was no longer in operation because the nature of the work and workplace had changed significantly. The original agreement was made in 2013 for a specific project that had been completed. Civmec Construction and Engineering Pty Ltd was now undertaking a new project at the Yandi Mine, which was different in scope and nature. The court found that the agreement did not reflect the current conditions and workforce requirements. Furthermore, the court concluded that terminating the agreement was in the public interest as it would allow for a more appropriate collective agreement to be negotiated, reflecting the current circumstances. Consequently, the court granted the application for termination.

The Federal Court of Australia ordered the termination of the Civmec Construction and Engineering Pty Ltd Yandi Sustaining Project AMWU Greenfields Agreement 2013. The order was made in the public interest, allowing for a new collective agreement to be negotiated that reflects the current work and workplace conditions at the Yandi Mine.

Civmec Construction and Engineering Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established