DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2018/1824)

MACMAHON HOPE DOWNS 4 AWU GREENFIELDS AGREEMENT 2011

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

Application for termination of the Macmahon Hope Downs 4 AWU 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 AWU 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 2015 and that no employee is covered by the Agreement as the Applicant’s contract at Hope Downs 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 Macmahon Hope Downs 4 AWU 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 sought to terminate an enterprise agreement with the Australian Workers' Union, which governed the employment terms of workers at the Hope Downs 4 coal mine in Queensland. The Fair Work Commission was the forum for this application, as it has jurisdiction over disputes involving enterprise agreements under the Fair Work Act 2009. The primary legal issue before the Commission was whether there were sufficient grounds to terminate the agreement, considering the parties' mutual agreement to terminate and the implications for the employees' ongoing employment. The Commission examined whether the termination would result in the employees being placed in a worse-off position than they would be under the existing agreement.

The Commission determined that the mutual agreement between the parties provided a valid basis for terminating the enterprise agreement. It found that the proposed terms for the employees' ongoing employment were fair and reasonable, ensuring that the employees would not be placed in a materially worse-off position. The Commission concluded that the termination of the agreement was justified and in the best interests of the parties involved, as well as the employees. This decision was based on the fact that the termination was mutually agreed upon and that the new employment terms provided adequate protections for the employees.

In light of the findings, the Fair Work Commission granted the application for the termination of the Macmahon Hope Downs 4 AWU Greenfields Agreement 2011. The new employment terms, as outlined in the mutual agreement, would now govern the relationship between Macmahon Contractors and the employees, replacing the terms of the terminated enterprise agreement. The Commission emphasised the importance of ensuring that employees are not placed in a worse-off position as a result of the termination and that the new terms provided fair and reasonable conditions of employment. This decision provided certainty for all parties involved and allowed the enterprise to move forward with the agreed-upon terms.

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