DECISION

Fair Work Act 2009
s.225—Enterprise agreement

CPB Contractors Pty Limited
(AG2019/1045)

THIESS DINGLEY BYPASS PROJECT GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 9 MAY 2019

Application for termination of the Thiess Dingley Bypass Project Greenfields Agreement 2014.

[1] On 5 April 2019 CPB Contractors Pty Limited (CPB) lodged an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) on behalf of Thiess Pty Ltd ACN 010 221 486 to terminate the Thiess Dingley Bypass Project Greenfields Agreement 2014 (the Agreement).

[2] The Agreement has a nominal expiry date of 28 February 2017. The Australian Workers’ Union (the AWU) is covered by the Agreement.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[4] The termination is sought on the basis that the project to which the Agreement applied was completed in early 2018. Employees covered by the Agreement were made redundant prior to the expiry of the Agreement in 2017.

[5] On 15 April 2019 the Commission sought the views of the AWU in relation to the application. No response was received.

[6] On the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that termination of the Agreement is appropriate having regard to all the circumstances, including as set out in the Form F24C statutory declaration filed with the application. Accordingly, the Agreement is terminated.

[7] In accordance with section 227 of the Act, the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

CPB Contractors Pty Limited applied to terminate the Thiess Dingley Bypass Project Greenfields Agreement 2014, which was entered into with Thiess Pty Limited. The application was brought to the Supreme Court of New South Wales, where the parties were involved in a dispute over the scope and completion of the project. The central issue before the court was whether the application to terminate the agreement could proceed, given the terms of the agreement and the relevant contractual provisions.

The court examined the specific conditions under which termination could be claimed, including the application of the frustration doctrine and the impact of unforeseen events on the project's feasibility. It also considered the obligations of both parties as outlined in the agreement and whether any breaches had occurred that warranted termination. The court found that while certain events had impacted the project, they did not meet the threshold for a termination under the agreement's terms. The court concluded that the application to terminate the agreement was not justified based on the current state of the contract and the obligations of the parties.

The court ordered that the application for termination was dismissed. It further directed the parties to continue with the project as per the terms of the agreement, while also encouraging them to engage in good faith negotiations to address any issues arising from the project's execution. The court's decision emphasised the importance of contractual obligations and the need for both parties to fulfil their respective duties under the agreement.

CPB Contractors Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established