Monadelphous Electrical & Instrumentation Pty Ltd

[2020] FWCA 538

[2020] FWCA 538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Electrical & Instrumentation Pty Ltd
(AG2020/74)

MI&E HOLDINGS PTY LTD SHENTON PARK SOLID WASTE TREATMENT PLANT CEPU AGREEMENT 2011

Electrical contracting industry
DEPUTY PRESIDENT BINET	PERTH, 4 FEBRUARY 2020

Application for termination of the MI&E Holdings Pty Ltd Shenton Park Solid Waste Treatment Plant CEPU Agreement 2011.

[1] Monadelphous Electrical & Instrumentation Pty Ltd (Monadelphous) formerly M I & E Holdings Pty Ltd has made an application (Application) to the Fair Work Commission (FWC) for the termination of the MI&E Holdings Pty Ltd Shenton Park Solid Waste Treatment Plant CEPU Agreement 2011 (Agreement)pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 4 October 2014.

[3] The parties to the Agreement are Monadelphous and the employees employed by Monadelphous on or in connection with Shenton Park Solid Waste Treatment Plant Project in the classifications detailed in Clause 3.1 of the Agreement (Employees).

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is covered by the Agreement.

[5] Section 225 of the FW Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[6] Section 226 of the FW Act states:

“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.”

[7] In support of the Application, Monadelphous filed a statutory declaration by Ms Nicole Lane (Lane Declaration). The Lane Declaration states that the Agreement does not currently apply to any employees, that the scope of work under clause 2.3 has ceased and will not be resumed and that therefore, it is not contrary to the public interest to terminate the Agreement.

[8] On 15 January 2020, Directions were issued with respect to the Application. The CEPU was directed to file an outline of submissions in response to the Application and any evidence on which they sought to rely by close of business on Thursday 30 January 2020.

[9] No response has been received from the CEPU as at the date of this decision.

Consideration

[10] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[11] Based on the material contained in the Lane Declaration filed with the Application, there is nothing before me that raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the Agreement.

[12] No opposition to the Application was received for, or on behalf, of any employees or the organisation entitled to represent them. In the circumstances I am satisfied that it is appropriate to terminate the Agreement.

[13] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in section 226 of the Act, the Agreement is terminated.

[14] The termination will come into effect from 4 February 2020.

DEPUTY PRESIDENT

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