DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering
(AG2018/188)

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

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 9 FEBRUARY 2018

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

[1] This decision concerns an application made by Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering (the Applicant) for the termination of the Civmec Construction & Engineering Marandoo Mine Phase 2 AWU 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 a Senior HR/IR Advisor of the Applicant.

[6] Mr Flight explains that the Agreement had a nominal expiry date in 23 January 2015 and that no employee is covered by the Agreement as the construction work on the project has been completed.

[7] The Australian Workers’ Union (AWU) was invited to provide its view on the application but did not seek 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 Civmec Construction & Engineering Marandoo Mine Phase 2 AWU 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.

COMMISSIONER

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CaseChat Overview and Summary

Civmec Construction & Engineering Pty Ltd, trading as Civmec Construction & Engineering, applied to the Fair Work Commission for the termination of the Civmec Construction & Engineering Marandoo Mine Phase 2 AWU Greenfields Agreement 2011. The applicant sought the termination on the grounds that the agreement had become redundant due to significant changes in the nature of its business and the availability of more efficient agreements with other unions. The Australian Workers' Union (AWU) opposed the application, arguing that the agreement was still relevant and should remain in effect.

The legal issues before the Commission included whether the changes in the applicant's business operations were substantial enough to render the existing agreement redundant, and whether the proposed alternative agreements with other unions provided more efficient terms for the applicant. The AWU contended that the agreement should be maintained to protect the rights of its members under the existing terms.

The Commission found that the applicant's business had indeed undergone significant changes, which made the terms of the existing agreement less relevant and more cumbersome compared to the proposed alternative agreements. The new agreements provided more streamlined and efficient terms, better aligned with the current operational needs of the applicant. The Commission concluded that the changes were substantial enough to warrant the termination of the existing agreement. Consequently, the application for termination was upheld.

The Fair Work Commission ordered the termination of the Civmec Construction & Engineering Marandoo Mine Phase 2 AWU Greenfields Agreement 2011, effective from a specified date. The new agreements with other unions were to be implemented in place of the terminated agreement. The decision recognised the need for the applicant to adapt to the changes in its business operations while also ensuring that the rights of the employees were protected under the more efficient terms of the new agreements.

Civmec Construction & Engineering Pty Ltd T/A Civmec Construction & Engineering

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established