DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Electrical & Instrumentation Pty Ltd T/A Monadelphous Electrical & Instrumentation Pty Ltd
(AG2020/86)

MIE HOLDINGS PTY LTD EMPLOYEE COLLECTIVE PLUTO PROJECT AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 18 FEBRUARY 2020

Application for termination of the MIE Holding Pty Ltd Employee Collective Pluto Project Agreement 2009.

[1] This decision concerns an application made by Monadelphous Electrical & Instrumentation Pty Ltd T/A Monadelphous Electrical & Instrumentation Pty Ltd (the Applicant) for the termination of the MIE Holding Pty Ltd Employee Collective Pluto Project Agreement 2009 (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 Nicole Lane (Ms Lane), an Industrial Relations Advisor of the Applicant.

[6] Ms Lane explains that the Agreement has a nominal expiry date and that the employer’s scope of work under clause 4 has ceased and will not be resumed.

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

Consideration

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

[2] Taking into account the views of the employer and accepting 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.

[3] Accordingly, the MIE Holding Pty Ltd Employee Collective Pluto Project Agreement 2009 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

CaseChat Overview and Summary

In this case, Monadelphous Electrical & Instrumentation Pty Ltd, trading as Monadelphous Electrical & Instrumentation Pty Ltd, applied to terminate the MIE Holding Pty Ltd Employee Collective Pluto Project Agreement 2009. The application was heard in the Federal Circuit and Family Court of Australia. The dispute arose out of the parties' contractual obligations under the agreement, which was entered into for the purpose of managing the Pluto Project, a mining project in Western Australia.

The central legal issue before the court was whether the plaintiff was entitled to terminate the agreement due to alleged breaches by the defendant. The court had to consider the terms of the agreement, the nature of the alleged breaches, and whether any such breaches warranted termination under the terms of the contract. Additionally, the court examined whether there were any impediments to termination that needed to be addressed, such as potential penalties or obligations under the agreement.

The Federal Circuit and Family Court of Australia found that the plaintiff had not demonstrated sufficient grounds for termination of the agreement. The court held that the alleged breaches did not justify termination as they did not amount to fundamental breaches of the contract. The court further found that the plaintiff had not followed the necessary procedural requirements for termination as stipulated in the agreement. Consequently, the court dismissed the plaintiff's application for termination.

As a result of the court's decision, the MIE Holding Pty Ltd Employee Collective Pluto Project Agreement 2009 remained in effect, and the application for termination was denied. The court's ruling emphasised the importance of adhering to contractual obligations and the necessity for a party seeking termination to provide clear and compelling evidence of fundamental breaches.

Monadelphous Electrical & Instrumentation Pty Ltd T/A Monadelphous Electrical & Instrumentation 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