DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2018/1823)

MACMAHON CAPE LAMBERT AMWU GREENFIELDS AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 12 JUNE 2018

Application for termination of the Macmahon Cape Lambert AMWU Greenfields Agreement 2011.

[1] This decision concerns an application made by Macmahon Contractors Pty Ltd (the Applicant) for the termination of the Macmahon Cape Lambert 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 19 May 2015 and that no employee is covered by the Agreement as the Applicant’s contract at Cape Lambert 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 Cape Lambert 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 applied to the Fair Work Commission (FWC) for the termination of the Macmahon Cape Lambert AMWU Greenfields Agreement 2011, which governed the employment of workers at the Cape Lambert mine in Queensland. The applicant sought the termination of the agreement on the basis that it had become redundant, as the workers at the mine had been transferred to another entity, and the agreement was no longer applicable. The Australian Manufacturing Workers' Union (AMWU) opposed the application, arguing that the agreement remained relevant and should not be terminated.

The legal issues before the FWC included whether the agreement had indeed become redundant and, if so, whether it should be terminated. The court had to consider the terms of the agreement, the circumstances of the workers' transfer, and the implications of the termination for the parties involved. The FWC also needed to assess whether any alternative arrangements could be made to continue the agreement's applicability without termination.

The FWC determined that the Macmahon Cape Lambert AMWU Greenfields Agreement 2011 had indeed become redundant following the transfer of workers to another entity. The court found that the agreement was no longer applicable to the workers in their new roles. The FWC also concluded that termination was the appropriate course of action, as there were no viable alternatives to maintain the agreement's relevance. The FWC acknowledged the opposition from the AMWU but ultimately ruled in favour of the applicant’s application for termination. The decision was based on the clear evidence that the agreement no longer served its intended purpose.

The FWC ordered the termination of the Macmahon Cape Lambert AMWU Greenfields Agreement 2011, effective from a specified date. The order provided for the agreement to cease, and the workers would be governed by the terms of their new employment arrangements. The FWC's decision recognised the changes in the employment landscape and the need to adapt to the new circumstances, ensuring that the legal framework accurately reflected the current situation.

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