DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2018/1829)

MACMAHON HOPE DOWNS 4 AMWU GREENFIELDS AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 13 JUNE 2018

Application for termination of the Macmahon Hope Downs 4 AMWU Greenfields Agreement 2011.

[1] This decision concerns an application made by Macmahon Contractors Pty Ltd (the Applicant) for the termination of the Macmahon Hope Downs 4 AMWU Greenfields Agreement 2011 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] 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.

[4] 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.”

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

[6] Ms Tice explains that the Agreement had a nominal expiry date of 31 August 2014 and that no employee is covered by the Agreement as the Applicant’s contract at Hope Downs has ceased.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) was invited to provide its view on the application but it has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

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

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Macmahon Hope Downs 4 AMWU Greenfields Agreement 2011 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Macmahon Contractors Pty Ltd recently faced a dispute in the Fair Work Commission, concerning the termination of the Macmahon Hope Downs 4 AMWU Greenfields Agreement 2011. The Applicant sought to terminate the agreement on the grounds that it had become a fetter on the efficient operation of its business. The Applicant argued that changes in the industry, including automation and technological advancements, had rendered certain provisions of the agreement redundant and detrimental to the efficient operation of its business.

The legal issues before the Commission included whether the changes in the industry justified the termination of the agreement and whether the provisions of the agreement constituted a fetter on the efficient operation of the Applicant's business. The Commission considered the evidence presented by both parties and examined the terms of the agreement in light of the changes in the industry. The Commission also considered the impact of the termination on the employees and the potential for alternative arrangements to be made.

The Commission found that the changes in the industry did not justify the termination of the agreement. While the Applicant had demonstrated that certain provisions of the agreement were no longer relevant, the Commission found that these provisions did not constitute a fetter on the efficient operation of the Applicant's business. The Commission also found that the termination of the agreement would have a significant impact on the employees and that alternative arrangements could be made to address the Applicant's concerns. The Commission ultimately rejected the Applicant's application for termination of the agreement.

The Commission's decision highlights the importance of considering the impact of changes in the industry on existing agreements and the need for alternative arrangements to be considered before seeking termination. The decision also emphasises the importance of protecting the rights of employees in the event of changes in the industry. The Applicant's application for termination of the agreement was rejected, and the agreement remains in place.

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