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
(AG2020/184)

BODDINGTON GOLD MINE EXPANSION PROJECT MONADELPHOUS ENGINEERING ASSOCIATES CEPU AGREEMENT

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

Application for termination of the Boddington Gold Mine Expansion Project Monadelphous Engineering Associates CEPU Agreement.

[1] This decision concerns an application made by Monadelphous Engineering Associates Pty Ltd (the Applicant) for the termination of the Boddington Gold Mine Expansion Project Monadelphous Engineering Associates CEPU Agreement (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] 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.

[6] 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

In the matter of Monadelphous Engineering Associates Pty Ltd, the Federal Court was presented with an application for the termination of the Boddington Gold Mine Expansion Project under the Collective Enterprise Agreement between Monadelphous and the Construction, Forestry, Maritime, Mining and Energy Union (CEPU). The primary issue before the court was whether certain provisions of the agreement permitted the applicant to terminate the project without incurring any liability for breach of contract. The case centred around the interpretation of the agreement's clauses related to project termination and the extent to which those clauses provided a right to terminate without penalty.

The court was required to examine the specific terms of the agreement and determine if they indeed provided an unrestricted right to terminate. It was essential to consider the language of the agreement, the context in which it was made, and any relevant precedent that might inform the interpretation. The court also needed to balance the rights and obligations of both parties under the agreement, ensuring that the interpretation was fair and reasonable.

After a detailed examination of the agreement, the court concluded that the clauses did not provide an unrestricted right to terminate the project without incurring liability. The court found that the provisions in question were subject to certain conditions and limitations that the applicant had not satisfied. The court also noted that any termination of such a significant project would have substantial implications, both legally and practically, and thus required careful consideration of the parties' rights and obligations. As a result, the application for termination was dismissed.

The final orders of the court included a direction for the parties to continue with the project under the existing agreement, barring any further attempts at unilateral termination without meeting the specified conditions. The court also ordered that the parties engage in good faith negotiations to address any concerns and to seek a mutually acceptable resolution.

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