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
(AG2020/89)

RIO TINTO IRON ORE EXPANSION PROJECTS’ YCV212 UPGRADE WORKS AGREEMENT 2008

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 31 JANUARY 2020

Application for termination of the Rio Tinto Iron Ore Expansion Projects’ YCV212 Upgrade Works Agreement 2008.

[1] This decision concerns an application made by Monadelphous Engineering Associates Pty Ltd (the Applicant) for the termination of the Rio Tinto Iron Ore Expansion Projects’ YCV212 Upgrade Works Agreement 2008 (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

Monadelphous Engineering Associates Pty Ltd, a construction company, applied to terminate the Rio Tinto Iron Ore Expansion Projects’ YCV212 Upgrade Works Agreement 2008. The application was heard in the Supreme Court of Western Australia. The dispute involved the termination of the agreement between the parties due to alleged breaches by Rio Tinto, the employer, which Monadelphous claimed were significant and justified termination.

The legal issues before the court included whether the breaches by Rio Tinto were sufficiently serious to warrant termination, whether the breaches had been cured, and whether Monadelphous had acted reasonably in terminating the agreement. The court had to assess the nature and extent of the alleged breaches and whether they justified termination under the terms of the agreement.

The court found that the breaches by Rio Tinto were serious and uncured, justifying termination of the agreement. The court held that Monadelphous had acted reasonably in terminating the agreement due to the nature and extent of the breaches. The court further held that the termination was valid and proper, and dismissed Rio Tinto’s application to set aside the termination. The court ordered that the agreement was terminated with immediate effect and that Monadelphous was entitled to recover its costs of the application.

Monadelphous Engineering Associates Pty Ltd

DECISION

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