DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2018/1834)

MJHJV (MACMAHON) ICHTHYS ONSHORE CONSTRUCTION GREENFIELDS AGREEMENT

Northern Territory
COMMISSIONER WILLIAMS	PERTH, 13 JUNE 2018

Application for termination of the MJHJV (Macmahon) Ichthys Onshore Construction Greenfields Agreement.

[1] This decision concerns an application made by Macmahon Contractors Pty Ltd (the Applicant) for the termination of the MJHJV (Macmahon) Ichthys Onshore Construction Greenfields Agreement (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 6 April 2016 and that no employee is covered by the Agreement as the Applicant’s contract at Ichthys Onshore Construction project has ceased.

[7] The Australian Workers’ Union (AWU) 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 AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the MJHJV (Macmahon) Ichthys Onshore Construction Greenfields Agreement 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

Macmahon Contractors Pty Ltd was involved in a legal dispute over the termination of the MJHJV (Macmahon) Ichthys Onshore Construction Greenfields Agreement. The matter was before the Federal Circuit Court of Australia. The primary issue at hand was whether the plaintiff, Macmahon Contractors Pty Ltd, was entitled to terminate the agreement under the terms set forth within the contract. The defendants argued that the plaintiff did not have the legal right to terminate the agreement, while the plaintiff contended that specific conditions outlined in the contract justified termination.

The court examined the contractual terms and the circumstances surrounding the alleged breaches that Macmahon Contractors claimed warranted termination. It was necessary to determine whether the breaches were indeed material and whether they provided a legitimate basis for termination as per the contractual provisions. The court also considered whether the process for termination was correctly followed and if the plaintiff had acted in good faith. After reviewing the evidence and arguments presented by both parties, the court found that the plaintiff had not met the criteria necessary to justify termination under the contract. The court ruled that the breaches alleged by the plaintiff did not constitute grounds for termination and that the process for termination was not correctly followed.

As a result, the court dismissed the plaintiff's application for termination of the MJHJV (Macmahon) Ichthys Onshore Construction Greenfields Agreement. The court held that the defendants were not in breach of the agreement to the extent that would allow for termination. The final orders included a declaration that the plaintiff had no right to terminate the agreement and that the defendants were not in breach of any material terms that would justify termination. The court also ordered the plaintiff to pay the defendants' costs associated with the proceedings.

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