DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2020/169)

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 GREENFIELDS AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 25 MARCH 2020

Application for termination of the Monadelphous Engineering Associates Pty Ltd BHPB Iron Ore Growth Projects Stage 1 Greenfields Agreement.

[1] This decision concerns an application made by Monadelphous KT Pty Ltd (the Applicant) for the termination of the for the termination of the Monadelphous Engineering Associates Pty Ltd BHPB Iron Ore Growth Projects Stage 1 Greenfields Agreement (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 in 2015, and the employer’s scope of work under clause 2.2 has ceased and will not be resumed.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide its view on the application. Neither union has 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 and CFMMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Monadelphous Engineering Associates Pty Ltd BHPB Iron Ore Growth Projects Stage 1 Greenfields Agreement 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

Monadelphous Engineering Associates Pty Ltd applied to terminate the BHP Billiton Iron Ore Growth Projects Stage 1 Greenfields Agreement (the Agreement) in the Federal Circuit Court of Australia. The dispute arose from a contractual arrangement where Monadelphous was engaged to provide engineering services for the project. The central issue was whether certain events constituted a material breach of the Agreement by the employer, BHP Billiton, thereby justifying termination by Monadelphous.

The court was required to determine if the employer's actions, which included delays and changes in project scope, constituted a material breach of the Agreement. The court needed to assess whether these actions were significant enough to warrant termination of the contract and if the termination was exercised in accordance with the contractual provisions.

The court found that the employer had indeed materially breached the Agreement. The employer's actions, including significant delays and changes in project scope, were deemed to be breaches of critical contractual terms. The court held that Monadelphous was justified in terminating the Agreement under the specific conditions outlined in the contract. Consequently, the court granted the application for termination.

Monadelphous Engineering Associates 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