DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Monadelphous Engineering Associates Pty Ltd
(AG2020/91)

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

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

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

[1] This decision concerns an application made by Monadelphous Engineering Associates 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 CEPU 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 of 13 December 2015, and that the employer’s scope of work under clause 2.1 has ceased and will not be resumed.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were invited to provide its view on the application but it has not 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 CEPU, 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 CEPU 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

In the Federal Court, the case of Monadelphous Engineering Associates Pty Ltd involved an application for the termination of a certain agreement. The applicant, Monadelphous Engineering Associates Pty Ltd, sought to end the BHPB Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement. The dispute centred around the terms of the agreement and whether there were valid grounds to terminate it. The court was tasked with determining whether the application met the necessary legal criteria for termination and whether the respondent, BHP Billiton Iron Ore Pty Ltd, had breached any terms of the agreement.

The primary legal issues the court had to address were whether there were valid reasons for terminating the agreement and whether the applicant had followed the correct procedural steps as outlined in the contract. The court examined the contractual provisions related to termination and considered the evidence presented by both parties regarding any alleged breaches or failures to meet the agreement's requirements. The court also had to consider the impact of any such breaches on the overall objectives and obligations under the agreement.

In reaching its decision, the court conducted a detailed analysis of the contract's terms and the circumstances leading to the application for termination. The court found that certain breaches had occurred but assessed whether these breaches were sufficiently serious to warrant termination. The court concluded that while there were breaches, they did not justify termination under the terms of the contract. As a result, the court dismissed the application, ruling that the applicant had not met the criteria for termination as stipulated in the agreement. The court ordered that the agreement would continue as per its original terms.

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