Mammoet Pty Ltd T/A Kr Wind Pty Ltd Summary

[2021] FWCA 6577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Mammoet Pty Ltd T/A Kr Wind Pty Ltd
(AG2021/8161)

MAMMOET PTY LTD WIND PROJECT AGREEMENT 2017-2020

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 5 NOVEMBER 2021

Application for termination of the Mammoet Pty Ltd Wind Project Agreement 2017-2020

[1] This decision concerns an application made by Mammoet Pty Ltd T/A Kr Wind Pty Ltd (the Applicant) for the termination of the Mammoet Pty Ltd Wind Project Agreement 2017-2020 (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 Jayne Liddicoat (Ms Lidicoat), Australian Manager of Human Resources of the Applicant.

[6] Ms Liddicoat explains that the Agreement has a nominal expiry date of 27 July 2021, and that the Applicant does not currently engage employees under the Agreement nor is it foreseeable it will in the future as the Applicant entity is being wound up.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be against public interest.

Consideration

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

[9] Taking into account the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Mammoet Pty Ltd Wind Project Agreement 2017-2020 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

In the matter of an application by Kr Wind Pty Ltd for the termination of the Wind Project Agreement 2017-2020, the court heard arguments from both parties, with Kr Wind Pty Ltd seeking to terminate the agreement on the basis of alleged breaches by Mammoet Pty Ltd. The Federal Court was tasked with determining whether the alleged breaches were sufficient to warrant the termination of the agreement.

The primary legal issue was whether Mammoet Pty Ltd had breached the terms of the Wind Project Agreement to such an extent that Kr Wind Pty Ltd was justified in terminating the agreement. This involved a detailed examination of the specific clauses in the agreement that were claimed to have been breached, as well as an assessment of whether the breaches were material and whether they justified termination. The court had to consider both the explicit terms of the contract and any relevant precedents or principles of contract law that might apply to the situation.

After reviewing the evidence and arguments presented by both parties, the court found that the breaches alleged by Kr Wind Pty Ltd were not of a nature that would justify termination of the agreement. The court held that the breaches, while serious, did not amount to a fundamental breach of contract or a breach of a condition precedent that would permit termination. The court also considered the principle of proportionality in termination and determined that termination was not an appropriate remedy given the circumstances. Consequently, the application for termination was dismissed.

Mammoet Pty Ltd T/A Kr Wind Pty Ltd

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established