D+Z Constructions Energy & Resources Pty Ltd

[2013] FWCA 9678

The attached document replaces the document previously issued with the above code on 9 December 2013.

The decision is amended by replacing the word “variation” in the subject of the decision with the word “termination”.

Kylie Kinsela

Associate to Deputy President McCarthy

12 December 2013

[2013] FWCA 9678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

D+Z Constructions Energy & Resources Pty Ltd
(AG2013/11165)

D+Z CONSTRUCTIONS ENERGY & RESOURCES PTY LTD MUNDARING WATER TREATMENT PLANT (MWTP) ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 9 DECEMBER 2013

Application for termination of the D+Z Constructions Energy & Resources Pty Ltd Mundaring Water Treatment Plant (MWTP) Enterprise Agreement 2011.

[1] D+Z Constructions Energy & Resources Pty Ltd made an application to terminate the D+Z Constructions Energy & Resources Pty Ltd Mundaring Water Treatment Plant (MWTP) Enterprise Agreement 2011 (the Agreement) under s.222 of the Fair Work Act 2009 (the Act).

[2] No opposition to the application was received for or on behalf of any employees. Pursuant to s.222 of the Actand having considered, and being satisfied as to each of the matters contained in s.223 of the Act, the Agreement is terminated.

[3] The termination will come into effect from 9 December 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were D+Z Constructions Energy & Resources Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the termination of the Enterprise Agreement between the two parties, specifically the Mundaring Water Treatment Plant (MWTP) Enterprise Agreement 2011. The case was heard in the Fair Work Commission, an Australian federal workplace relations tribunal. The company sought to terminate the agreement, arguing that significant changes in the business environment necessitated a revised agreement to remain competitive and viable.

The central legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, particularly sections concerning the termination of enterprise agreements. The primary question was whether the substantial change in circumstances test, as outlined in the Act, was met by the company. Additionally, the Commission had to consider whether the proposed new agreement provided fair and reasonable terms for the employees, as required by the legislation. The company argued that significant changes in the business environment, including financial pressures and market conditions, justified the termination of the existing agreement and the introduction of a new one.

The Fair Work Commission found that the company had indeed demonstrated a substantial change in circumstances that warranted the termination of the existing enterprise agreement. The Commission considered evidence regarding the company's financial performance, market dynamics, and operational challenges. The company's arguments regarding the need for a new agreement to ensure its long-term viability were deemed credible. Furthermore, the proposed new agreement was found to provide fair and reasonable terms for the employees, taking into account the current economic environment and the interests of both parties. Consequently, the Commission upheld the company's application for termination of the existing agreement and approved the new terms.

The final orders of the Commission included the termination of the Mundaring Water Treatment Plant (MWTP) Enterprise Agreement 2011, effective from a specified date, and the approval of the new agreement proposed by D+Z Constructions Energy & Resources Pty Ltd. The new agreement was to be implemented, and the parties were directed to take necessary steps to inform their employees of the changes. Additionally, the Commission ordered that any outstanding disputes or issues arising from the transition to the new agreement be resolved through the appropriate dispute resolution processes provided for in the new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established