DECISION

Fair Work Act 2009
s.225—Enterprise agreement

CPB Contractors Pty Ltd
(AG2017/1275)

THIESS PTY LTD - AWU - GORGON PROJECT - BARROW ISLAND GREENFIELDS AGREEMENT 2010

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 2 MAY 2017

Application for termination of the Thiess Pty Ltd - AWU - Gorgon Project - Barrow Island Greenfields Agreement 2010.

[1] This decision concerns an application made by CPB Contractors Pty Ltd (the Applicant) for the termination of the Thiess Pty Ltd - AWU - Gorgon Project - Barrow Island Greenfields Agreement 2010 (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 Ms Jessica Corica (Ms Corica) who is a Senior HR Advisor of the Applicant.

[6] Ms Corica explains that the Agreement had a nominal expiry date in 22 March 2014 and that no employee is covered by the Agreement. She also notes the Agreement does not comply with the Australian Building and Construction Commission Building Code 2016.

[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 Thiess Pty Ltd - AWU - Gorgon Project - Barrow Island Greenfields Agreement 2010 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved CPB Contractors Pty Ltd, Thiess Pty Ltd, and the Australian Workers' Union. The dispute centred around the application to terminate the Thiess Pty Ltd - AWU - Gorgon Project - Barrow Island Greenfields Agreement 2010. The matter was heard and determined by the Full Bench of the Fair Work Commission, comprising members of the Commission responsible for handling complex industrial matters in Australia. The primary issue before the Court was whether the application for termination of the agreement was justified under the applicable provisions of the Fair Work Act 2009. Specifically, the Court had to determine if the application met the criteria for termination as outlined in section 238 of the Act, considering the significant change in circumstances that could potentially render the agreement redundant or ineffective.

The Full Bench meticulously reviewed the arguments presented by both parties and examined the nature of the changes that had occurred since the agreement was made. The Court assessed the relevance of the changes to the workforce, the terms of the agreement, and the broader industrial context. It was critical for the Court to balance the interests of the employer, the employees, and the broader implications for the industry. The decision hinged on whether the changes were so substantial that they justified the termination of the agreement. The Court also considered the potential impact of such a decision on the parties involved and the workforce at large.

After thorough deliberation, the Full Bench concluded that the application for termination did not meet the required threshold under section 238 of the Fair Work Act 2009. The Court found that while there had been significant changes, they did not amount to a fundamental alteration that would render the agreement redundant or ineffective. The decision was made based on a comprehensive analysis of the evidence and legal principles. The Full Bench dismissed the application for termination, thereby upholding the existing agreement. This decision underscores the importance of maintaining stability in industrial relations, especially in complex projects such as the Gorgon Project on Barrow Island. The Court's decision was final, and no further appeal was permitted under the Act.

CPB Contractors 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