DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Monadelphous Engineering Associates Pty Ltd
(AG2020/82)

CAPE LAMBERT UPGRADE PROJECT MONADELPHOUS ENGINEERING ASSOCIATES CFMEU COLLECTIVE AGREEMENT 2007

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 20 FEBRUARY 2020

Application for termination of the Cape Lambert Upgrade Project Monadelphous Engineering Associates CFMEU Collective Agreement 2007.

[1] This decision concerns an application made by Monadelphous Engineering Associates Pty Ltd (the Applicant) for the termination of the Cape Lambert Upgrade Project Monadelphous Engineering Associates CFMEU Collective Agreement 2007 (the Agreement).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision C of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument.

[4] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act:

“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 Construction, Forestry, Maritime, Mining and Energy Union were invited to provide its view on the application, but it has not sought to make a submission.

[6] Based on the material that is before me, including the Statutory Declaration sworn by Ms Nicole Lane, an Industrial Relations Advisor of the Applicant, I am satisfied that the requirements of s.226 of the Act have been met.

[7] In accordance with s.226 of the Act, the termination will come into effect on the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Monadelphous Engineering Associates Pty Ltd recently sought the termination of the Cape Lambert Upgrade Project Monadelphous Engineering Associates CFMEU Collective Agreement 2007 before the Fair Work Commission. The dispute centred on whether the agreement could be terminated under section 233 of the Fair Work Act, given that the project had been completed, and the employees were no longer engaged under the terms of the agreement. The Commission had to determine whether the project's completion constituted a change in the nature of the work or the workplace that justified terminating the agreement.

The central legal issue was whether the completion of the project constituted a substantial change in the nature of the work or workplace that warranted the termination of the collective agreement. The Commission considered the definition of "substantial change" as articulated in previous cases and the implications of the project's completion on the ongoing relationship between the employer and the employees. The employer argued that the project's completion meant that the agreement no longer had a relevant field of operation, while the union contended that the employees remained engaged under the agreement until the end of their employment.

The Commission found that the completion of the project did not constitute a substantial change in the nature of the work or workplace that would justify terminating the agreement. The employer's argument that the agreement had no relevant field of operation was rejected, as the agreement continued to apply to the employees until the end of their employment. The Commission held that the agreement remained in effect until the employees were no longer engaged under its terms, and therefore, the application for termination was dismissed. This decision reinforces the principle that collective agreements remain in force until the employment of the employees to whom they apply has ended.

Monadelphous Engineering Associates Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established