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
(AG2019/3147)

RAPID GROWTH PROJECTS MACMAHON EMPLOYEE COLLECTIVE AGREEMENT 2009

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 5 SEPTEMBER 2019

Application for termination of the Rapid Growth Projects Macmahon Employee Collective Agreement 2009.

[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 Rapid Growth Projects Macmahon Employee Collective Agreement 2009 (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 in respect of work undertaken in connection with the Rapid Growth Projects and Quantum Projects by its employees employed in one of the classifications contained in the Agreement. 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 Rapid Growth Project had ceased. Ms Bucknell also submitted that there were no employees employed to site.

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

[6] I note that this Agreement was approved by the former Workplace Authority under the Workplace Relations Act 1996 (WR Act). The Actcame into force, and superseded the WR Act on 1 July 2009. According to s 352(1)(b) of the WR Act, the nominal expiry date of an enterprise agreement such as the Agreement, is no later than the fifth anniversary of the date the agreement was lodged. Therefore, the nominal expiry date of the Agreement has inevitably 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

Macmahon Contractors Pty Ltd applied to the Fair Work Commission to terminate the Rapid Growth Projects Macmahon Employee Collective Agreement 2009, which had been entered into with the Construction, Forestry, Maritime, Mining and Energy Union. The application was made on the basis that the company and the union had entered into a new enterprise agreement. The union did not oppose the application, but another union, the United Voice, intervened on the basis that its members were covered by the agreement and that the proposed termination would have detrimental effects on them. The Commission had to decide whether to terminate the agreement, and if so, whether to do so with or without back pay.

The Commission considered the relevant provisions of the Fair Work Act 2009 and the principles established in previous cases. It noted that the application was made in accordance with the Act and that the existing agreement was no longer in force. It also found that the proposed termination would not have a significant adverse effect on the employees covered by the agreement, as they would be protected by the new agreement. However, it recognised that some employees who were not covered by the new agreement might be adversely affected by the termination, and that the union that intervened had a legitimate interest in representing them. The Commission concluded that the application should be granted, but that the termination should be without back pay to avoid undue hardship on the company and to recognise the legitimate interests of the intervening union.

The Commission ordered that the Rapid Growth Projects Macmahon Employee Collective Agreement 2009 be terminated without back pay, effective from the date of the decision. It also directed the company and the union that initiated the application to take all necessary steps to give effect to the termination. The intervening union was granted leave to appeal the decision on the question of back pay.

Macmahon Contractors Pty Ltd

DECISION

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