Monadelphous Engineering Associates Pty Ltd

[2020] FWCA 568

[2020] FWCA 568

FAIR WORK COMMISSION

DECISION

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

Monadelphous Engineering Associates Pty Ltd
(AG2020/94)

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD DARWIN LNG PLANT COLLECTIVE AGREEMENT 2014

Northern Territory
COMMISSIONER HUNT	BRISBANE, 13 FEBRUARY 2020

Application for termination of the Monadelphous Engineering Associates Pty Ltd Darwin LNG Plant Collective Agreement 2014.

[1] On 16 January 2020, Monadelphous Engineering Associates Pty Ltd (the Employer) applied under s.225 of the Fair Work Act 2009 (the Act) to terminate the Monadelphous Engineering Associates Pty Ltd Darwin LNG Plant Collective Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The Agreement covers the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (the AMWU), the Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union (the CEPU), and the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU).

[3] The application was supported by a statutory declaration of Ms Nicole Lane, Industrial Relations Advisor of the Employer, sworn 7 January 2020. Ms Lane’s statutory declaration declared, among other things, that there are no employees currently engaged to work under the Agreement. Ms Lane also declared that there are no relevant public interest matters which would warrant the continuation of the Agreement.

[4] The application was served on the AMWU, the CEPU and the CFMMEU by the Employer on 16 January 2020. Email correspondence from the CEPU forwarded to my chambers on 21 January 2020 indicates that the CEPU does not object to the application. On 5 February 2020, I wrote to the AMWU and the CFMMEU inviting them to provide their views to my chambers about the application. The AMWU communicated that it did not wish to be heard and considered the application can be determined on the papers. The CFMMEU did not provide a response.

[5] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[6] Based on the material contained in Ms Lane’s statutory declaration and in consideration of s.226(a) of the Act, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement. In consideration of the material before me relevant to s.226(b)(i) and (ii) of the Act, I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 13 February 2020.

COMMISSIONER

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