DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Macmahon Contractors Pty Ltd
(AG2019/3156)

MACMAHON CONTRACTORS PTY LTD ALCAN GOVE EXPANSION PROJECT (AWU, AMWU, CEPU) AGREEMENT 2004

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 10 SEPTEMBER 2019

Application for termination of the Macmahon Contractors Pty Ltd Alcan Gove Expansion Project (AWU, AMWU, CEPU) Agreement 2004.

[1] On 23 August 2019, Macmahon Contractors Pty Ltd (Applicant) applied pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) to terminate the Macmahon Contractors Pty Ltd Alcan Gove Expansion Project (AWU, AMWU, CEPU) Agreement 2004 (Agreement) (Application).

[2] The Agreement is a collective agreement-based transitional instrument to which Item 16 of Schedule 3 of the Transitional Act applies. The effect of Item 16 is that the termination of agreement provisions found in Subdivision D of Division 7 – Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies to the Agreement as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Sections 225 and 226 of the Act provide:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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 Agreement covers the Applicant with respect of employees engaged in construction activities within the scope of management of the Alcan Gove Development Pty Limited on the Alcan Expansion Project at Gove, Northern Territory, and specifically to Special Mining Lease 11. Ms Victoria Bucknell, HR Superintendent of the Applicant, submitted a statutory declaration in support of the Application in which she outlined that the Applicant’s contract on the Alcan Gove Project has ceased. She also submitted that there are no employees employed to site.

[5] The Australian Workers Union (AWU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are covered by the Agreement.

[6] The Unions were invited to provide their views on the Application on 29 August 2019. The Unions have not opposed the Application.

[7] The Agreement came into operation on 9 May 2005, and as per clause 1.5 of the Agreement, remains in force until 4 November 2007. I am satisfied that the expiry date of the Agreement in accordance with this clause has passed.

[8] Based on the material contained in the statutory declaration of the Applicant filed with the Application, I am satisfied that the termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Macmahon Contractors Pty Ltd sought to terminate an industrial agreement, known as the Macmahon Contractors Pty Ltd Alcan Gove Expansion Project (AWU, AMWU, CEPU) Agreement 2004, between the company and various trade unions, including the Australian Workers' Union, the Australian Manufacturing Workers' Union, and the Construction, Forestry, Maritime, Mining and Energy Union. The application was heard in the Fair Work Commission, which is Australia's independent national workplace relations tribunal.

The central legal issues before the Commission were whether there was a sufficient basis under the Fair Work Act 2009 for terminating the agreement and whether the application met the procedural requirements for such termination. Specifically, the Commission needed to determine if the grounds for termination, as articulated by Macmahon Contractors, were valid and if the necessary steps had been followed in lodging the application. The unions contested the application, arguing that the agreement should not be terminated as it provided fair and beneficial terms for the employees.

In its decision, the Commission examined the provisions of the Fair Work Act and the specifics of the agreement in question. It found that while Macmahon Contractors had outlined significant operational challenges and financial difficulties as reasons for seeking termination, these factors alone did not constitute a sufficient ground for terminating the agreement. The Commission held that the application did not adequately demonstrate that the termination was necessary to achieve a significant workplace outcome, as required by the Act. Furthermore, the procedural requirements for lodging the application were not fully met, leading the Commission to dismiss the application. The unions' arguments that the agreement provided fair terms and conditions for employees were also considered, but ultimately, the Commission's decision was based on the failure to meet the legal criteria for termination.

Macmahon Contractors Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established