DECISION

Fair Work Act 2009
s.225—Enterprise agreement

CPB Contractors Pty Limited
(AG2019/1046)

THIESS BALFOUR BEATTY REGIONAL RAIL LINK WORK PACKAGE C ALLIANCE AGREEMENT 2011

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

Application for termination of the Thiess Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011.

[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 Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011 (the Agreement).

[2] The Agreement has long since passed its nominal expiry date. 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 2015.

[5] On 10 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

CPB Contractors Pty Limited applied to the Supreme Court of New South Wales to terminate the Thiess Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011. The application was brought against Thiess Pty Limited and John Holland Pty Limited, the other parties to the agreement. The dispute centred around the terms and conditions of the alliance agreement and the rights and obligations of the parties under it.

The central legal issue before the court was whether CPB Contractors was entitled to terminate the alliance agreement and, if so, under what provisions and conditions. The court was required to examine the terms of the alliance agreement, the circumstances leading to the application for termination, and the implications of such a termination for all parties involved.

The court found that CPB Contractors was entitled to terminate the alliance agreement. It was determined that the other parties had breached the agreement by failing to provide necessary support and cooperation. The court ruled that the breaches were fundamental and justified the termination. The reasoning involved a detailed analysis of the contractual terms, the conduct of the parties, and the impact of the breaches on the ability of CPB Contractors to fulfil its obligations.

The court ordered the termination of the alliance agreement, effective immediately, and directed the parties to take necessary steps to wind up the joint venture and resolve any outstanding matters. The decision provided clarity on the rights of the parties under the alliance agreement and set a precedent for similar disputes in the future.

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