Macmahon Contractors Pty Ltd

[2019] FWCA 6030

[2019] FWCA 6030

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Macmahon Contractors Pty Ltd
(AG2019/3151)

MACMAHON CIVIL CONTRACTING CERTIFIED AGREEMENT 2004

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 5 SEPTEMBER 2019

Application for termination of the Macmahon Civil Contracting Certified 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 Civil Contracting Certified 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;

(c) an employee organisation 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 operations of the Applicant’s ‘Civil Division’ with respect of employees in the classifications described in Schedule Two of 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 no longer has a civil contracting business division and is therefore no longer in the business of providing these services. She also submitted that there are no employees employed under the Agreement.

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

[6] The Agreement came into operation on 13 October 2004, and as per clause 4 of the Agreement, expired on 31 July 2007. I am satisfied that the expiry date of the Agreement in accordance with this clause 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

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