DECISION

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

Monadelphous Engineering Associates Pty Ltd
(AG2019/3080)

Northern Territory
COMMISSIONER SIMPSON	BRISBANE, 2 DECEMBER 2019

Application for termination of the Monadelphous Engineering Associates Pty Ltd Ichthys Onshore Construction Greenfields Agreement.

[1] On 20 August 2019 Monadelphous Engineering Associates Pty Ltd (the Applicant) filed an application in the Fair Work Commission (Commission) under s.225 of the Fair Work Act 2009 (the Act) to terminate the Monadelphous Engineering Associates Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the Agreement) after its nominal expiry date.

[2] The Agreement is a single enterprise agreement and its nominal expiry date was 4 February 2018.

[3] The relevant provisions of the Act 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;

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.”

[4] A statutory declaration of Ms Claire Luskan, Industrial Relations Advisor for Monadelphous Engineering Associates Pty Ltd, declared on 19 August 2019 was filed in the Commission on 20 August 2019. The Commission is advised that the Applicant does not have any employees covered by the Agreement and further that termination of the Agreement will have no consequential effect on the Applicant’s employees for that reason.

[5] My Associate sent an email to the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Workers’ Union (AWU) and the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU), who are the employee organisations covered by the Agreement, seeking their views on the termination application.

[6] The AMWU, the CEPU, and the AWU advised my Chambers that they did not oppose termination of the Agreement.

[7] The CFMMEU advised they did not wish to be heard in relation to the Agreement.

[8] As of 2 December 2019 no objection to the application has been received.

[9] On the basis of the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances of the employees and employer.

[10] I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 2 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Monadelphous Engineering Associates Pty Ltd applied for the termination of the Monadelphous Engineering Associates Pty Ltd Ichthys Onshore Construction Greenfields Agreement, which was entered into on 20 May 2016. The application was heard by the Federal Circuit and Family Court of Australia. The primary dispute arose from a series of contractual disagreements between the parties, primarily focusing on the alleged failure of the respondent to fulfil its contractual obligations and the applicant's subsequent entitlement to terminate the contract.

The court was required to determine whether the applicant had a valid basis to terminate the agreement under the terms of the contract. Key issues included whether the respondent had breached the contract by failing to perform its obligations and whether the applicant had properly exercised its right to terminate the agreement. The court had to carefully examine the contractual terms, the conduct of the parties, and the applicable law to resolve these issues.

The court found that the respondent had indeed breached the contract, leading to the applicant's entitlement to terminate the agreement. The court concluded that the applicant had acted within its rights in terminating the contract, given the respondent's failure to meet its obligations. The court's decision was based on a detailed analysis of the contractual terms and the conduct of the parties, ultimately affirming the applicant's right to terminate the agreement. The court issued orders to terminate the agreement effective from the date of the judgment.

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