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
(AG2020/97)

BODDINGTON GOLD MINE EXPANSION PROJECT MONADELPHOUS CFMEU/AWU AGREEMENT 2007

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

Application for termination of the Boddington Gold Mine Expansion Project Monadelphous CFMEU/AWU Agreement 2007.

[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 CFMEU/AWU 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 Australian Workers' Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide its views 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

The case before the Federal Court involved Monadelphous Engineering Associates Pty Ltd, which sought to terminate the Boddington Gold Mine Expansion Project Monadelphous CFMEU/AWU Agreement 2007. The dispute centred around the application for termination of this particular agreement, which was governed by the Fair Work Act 2009. The Federal Court was tasked with determining the application for termination, with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Australian Workers' Union (AWU) opposing the termination.

The central legal issue that the court had to resolve was whether the applicant had demonstrated that there were exceptional circumstances warranting the termination of the agreement. Under section 239 of the Fair Work Act 2009, an enterprise agreement could be terminated if the Fair Work Commission was satisfied that exceptional circumstances existed, and termination was necessary to achieve a fair and efficient workplace. The court needed to assess whether the criteria for termination were met, considering the arguments and evidence presented by both parties.

The court evaluated the evidence and submissions from both parties to determine if there were indeed exceptional circumstances justifying the termination of the agreement. The applicant argued that significant changes in the operational environment and financial constraints made it necessary to terminate the agreement to remain competitive. The unions, on the other hand, contended that the changes could be managed within the existing agreement without necessitating its termination. After careful consideration, the court concluded that the applicant had not established the existence of exceptional circumstances. The court found that the changes in the operational environment did not reach the threshold of exceptional circumstances required under the Fair Work Act. Consequently, the application for termination was dismissed.

The court's decision was final, and the Boddington Gold Mine Expansion Project Monadelphous CFMEU/AWU Agreement 2007 remained in effect. The unions' rights and protections under the agreement continued, and the applicant's attempt to terminate the agreement was unsuccessful.

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