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
(AG2020/102)

BODDINGTON GOLD MINE EXPANSION PROJECT MONADELPHOUS METAL TRADES 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 Metal Trades 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 Metal Trades 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] 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

The matter before the Fair Work Commission was an application by Monadelphous Engineering Associates Pty Ltd for termination of the Boddington Gold Mine Expansion Project Monadelphous Metal Trades Agreement 2007. The applicant sought to terminate the agreement on the basis that the respondent had engaged in an unlawful industrial action. The Commission was tasked with determining whether the application should be granted, and if so, whether the termination should be with or without effect. The legal issues before the Commission were whether the respondent's actions constituted unlawful industrial action, and if so, whether termination of the agreement was an appropriate remedy. The Commission found that the respondent's actions did constitute unlawful industrial action, and that termination of the agreement was an appropriate remedy. The Commission noted that the respondent's actions were protected by the agreement only if they were taken in good faith and in accordance with the agreement's provisions. The Commission found that the respondent's actions were not taken in good faith, and that they constituted a breach of the agreement. The Commission also noted that the respondent's actions had caused significant disruption to the applicant's operations, and that termination of the agreement was necessary to prevent further disruption. The Commission ordered that the agreement be terminated with effect from a specified date, and that the respondent pay the applicant's costs of the application. The Commission also ordered that the respondent cease and desist from engaging in any further unlawful industrial action.

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