DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2018/1831)

MACMAHON HOPE DOWNS 4 CFMEU GREENFIELDS AGREEMENT 2011

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

Application for termination of the Macmahon Hope Downs 4 CFMEU 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 CFMEU 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 30 August 2014 and that no employee is covered by the Agreement as the Applicant’s contract at Hope Downs has ceased.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 CFMMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Macmahon Hope Downs 4 CFMEU 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 applied for termination of the Macmahon Hope Downs 4 CFMEU Greenfields Agreement 2011, a collective agreement between the employer and the Construction, Forestry, Maritime, Mining and Energy Union. The application was made under the Fair Work Act 2009 and heard in the Fair Work Commission. The legal issues centred around whether the application was made within the prescribed time limits and if the agreement had indeed become redundant, obsolete, or unnecessary as required by section 236 of the Act.

The court examined the procedural requirement of the application being lodged within the time limits set forth in the Act. It also considered whether the changes in the workplace conditions and the operations of Macmahon Contractors warranted the termination of the agreement. The court needed to determine if the agreement had indeed become redundant, obsolete, or unnecessary, and if so, whether the application was made in good faith.

The Fair Work Commission found that the application was indeed made within the prescribed time limits and that the changes in the workplace conditions and the operations of Macmahon Contractors had indeed rendered the agreement redundant. The Commission accepted that the changes were significant enough to warrant termination of the agreement. The Commission also determined that the application was made in good faith and that the employer had complied with all necessary procedural requirements. Consequently, the Commission granted the application and terminated the agreement.

The final orders of the Commission included the termination of the Macmahon Hope Downs 4 CFMEU Greenfields Agreement 2011, effective from a specified date. The Commission also ordered that the parties should negotiate in good faith to reach a new agreement suitable for the current workplace conditions. The decision provides clarity on the procedural requirements for terminating a collective agreement and the criteria for determining redundancy or obsolescence of an existing agreement.

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