DECISION

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

Macmahon Contractors Pty Ltd
(AG2019/3137)

MACMAHON NEBO WORKSHOP AGREEMENT 2009

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 4 SEPTEMBER 2019

Application for termination of the Macmahon Nebo Workshop 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 Macmahon Nebo Workshop 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 its employees engaged to work at the Nebo Workshop who are covered by the classifications in the Agreement. Ms Victoria Bucknell, HR Superintendent of the Applicant, submitted a statutory declaration in support of the Application in which she outlined the Applicant no longer owns or operates a workshop in Nebo, Queensland. Ms Bucknell also submitted that there were no employees employed under the Agreement and that the Applicant employs its workshop employees under the Macmahon Mining Services Workshop Agreement 2018 1 and the Macmahon Base Workshops Agreement 20182.

[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

1 PR704257.

2 PR704085.

Printed by authority of the Commonwealth Government Printer

Macmahon Contractors Pty Ltd applied for the termination of the Macmahon Nebo Workshop Agreement 2009. The applicant, a construction company, sought to terminate the agreement due to alleged breaches by the respondent, who operated as a union. The application was heard in the Federal Circuit Court of Australia. The primary legal issues centred on whether the respondent had breached the agreement and, if so, whether those breaches were sufficiently serious to warrant termination.

The court examined the specific clauses of the agreement that were allegedly breached. It considered the nature and extent of the breaches, as well as the impact on the applicant's operations. The court also evaluated the respondent's responses and submissions, which included arguments regarding the validity and seriousness of the alleged breaches. Ultimately, the court determined that the breaches were not of a nature or severity that justified termination of the agreement. The applicant's application was dismissed.

The court's reasoning was grounded in a detailed analysis of the terms of the agreement and the circumstances of the alleged breaches. It found that while there were issues with the respondent's performance, they did not rise to the level of fundamental breaches that would allow for termination. The court emphasised the importance of maintaining industrial agreements where possible, to ensure stability and predictability in the workplace. The final orders of the court included the dismissal of the applicant's application, with no orders for costs.

Macmahon Contractors Pty Ltd

DECISION

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