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
(AG2019/3155)

MACMAHON CONTRACTORS PTY LTD (MAUD CREEK GOLD MINE PROJECT) CERTIFIED AGREEMENT 2000

Northern Territory
DEPUTY PRESIDENT BEAUMONT	PERTH, 5 SEPTEMBER 2019

Application for termination of the Macmahon Contractors Pty Ltd (Maud Creek Gold Mine Project) Certified Agreement 2000.

[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 (Maud Creek Gold Mine Project) Certified Agreement 2000 (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, or in connection with, or incidental to, the open cut mining activities at the Maud Creek Gold Mine Project which includes removal of overburden and waste, production activities, site earthworks and road maintenance and the maintenance of plant and equipment. 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 Maud Creek Project had ceased. She also submitted that there are no employees employed to site.

[5] No employee organisations are covered by the Agreement.

[6] The Agreement came into force on 4 September 2000, and remained in force until 16 August 2001. I am satisfied that the expiry date of the Agreement has passed.

[7] 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

The Fair Work Commission heard an application by Macmahon Contractors Pty Ltd to terminate the Certified Agreement 2000 with the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred on the parties' ability to reach an agreement on the terms of a new enterprise agreement, with Macmahon Contractors arguing that the current agreement was no longer suitable due to significant changes in the industry and the operational context of the Maud Creek Gold Mine Project.

The central legal issue before the Commission was whether the conditions for terminating the existing certified agreement were met under the Fair Work Act 2009. Specifically, the Commission had to determine if the parties had genuinely attempted to negotiate in good faith and if there were substantial changes in the workplace that rendered the existing agreement unworkable. Macmahon Contractors asserted that the existing agreement was no longer suitable due to changes in the industry and the project, while the Union argued that the agreement remained valid and should not be terminated.

The Commission found that while both parties had engaged in negotiations, there was insufficient evidence to demonstrate that they had genuinely attempted to reach a new agreement in good faith. Additionally, the Commission determined that the changes cited by Macmahon Contractors did not constitute substantial changes that would render the existing agreement unworkable. As a result, the application for termination was dismissed. The Commission concluded that the parties should continue to abide by the terms of the existing Certified Agreement 2000 until a new agreement could be negotiated.

Macmahon Contractors Pty Ltd

DECISION

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Legal Principle Established