DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Macmahon Contractors Pty Ltd
(AG2018/1809)

MACMAHON BURTON GREENFIELDS AGREEMENT 2011

Coal industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 22 JUNE 2018

Application for termination of the Macmahon Burton Greenfields Agreement 2011.

[1] This decision concerns an application made by Macmahon Contractors Pty Ltd (the Applicant) on 3 May 2018 for the termination of the Macmahon Burton Greenfields Agreement 2011 (the Agreement) made under section 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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 Applicant has provided in support of its application a statutory declaration from Ms Victoria Tice (Ms Tice) who is the HR Superintendent of the Applicant.

[5] Ms Tice explains that the Agreement had a nominal expiry date of 14 December 2014, that no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future as Burton project contract has ended.

[6] The Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division (CFMMEU) were invited to provide its views on the Application on 8 June 2018. The CFMMEU have not opposed the application.

Consideration

[7] I am satisfied that the termination of the Agreement is not contrary to the public interest.

[8] I consider in the circumstances here it is appropriate to terminate the Agreement.
The views of the employer have been taken into account and I accept Ms Tice’s statement in her statutory declaration that there are no employees covered by the Agreement. The CFMMEU has not challenged this point.

[9] Accordingly, the Macmahon Burton Greenfields Agreement 2011 is terminated and pursuant to s. 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, Macmahon Contractors Pty Ltd applied for the termination of the Macmahon Burton Greenfields Agreement 2011. The dispute arose between Macmahon Contractors, the applicant, and Burton Greenfields, the respondent, over the terms of a contract that governed their relationship in the context of a construction project. Macmahon Contractors sought the court's intervention to terminate the agreement, alleging breaches by Burton Greenfields that warranted such action under the terms of the contract.

The legal issues before the court included whether Burton Greenfields had indeed breached the agreement and whether such breaches were material enough to justify termination. The court needed to examine the specific provisions of the contract to determine the nature and severity of the alleged breaches. Additionally, the court considered whether the agreement contained any clauses that would preclude or limit the right to terminate for specific breaches.

In delivering the judgment, the court carefully examined the contract's terms and the evidence provided by both parties. The court found that Burton Greenfields had indeed breached the agreement, but these breaches did not meet the threshold for termination as stipulated in the contract. The court concluded that while Burton Greenfields had failed to comply with certain obligations, the breaches were not severe enough to warrant termination of the agreement. Consequently, the application for termination was dismissed. The court ordered that the agreement remain in effect unless otherwise amended by mutual consent of the parties or as provided for in the contract.

Macmahon Contractors Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established