DECISION

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

Monadelphous Engineering Associates Pty Ltd
(AG2019/4109)

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD OIL & GAS BUSINESS UNIT AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 25 NOVEMBER 2019

Application for termination of the Monadelphous Engineering Associates Pty Ltd Oil & Gas Business Unit Agreement 2015.

[1] This decision concerns an application made by Monadelphous Engineering Associates Pty Ltd (the Applicant) for the termination of the Monadelphous Engineering Associates Pty Ltd Oil & Gas Business Unit Agreement 2015 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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 Applicant has provided in support of its application a statutory declaration from Ms Claire Luskan (Ms Luskan) who is an Industrial Relations Advisor of the Applicant.

[6] Ms Luskan explains that the employer’s scope of work under clause 2 of the Agreement has ceased and will not apply to any employees in the future and that the Agreement expired on 1 July 2018.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide its view on the application but it has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the CFMMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Monadelphous Engineering Associates Pty Ltd Oil & Gas Business Unit Agreement 2015 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

Monadelphous Engineering Associates Pty Ltd (MEA) sought to terminate its Oil & Gas Business Unit Agreement (Agreement) with the United Workers Union (UWU). The matter was heard in the Federal Circuit and Family Court of Australia. The dispute centred on the interpretation and application of the Agreement, specifically in relation to the UWU's alleged breaches of the agreement and MEA's right to terminate the Agreement as a result of those breaches.

The key legal issues before the court were whether the UWU had breached the Agreement by engaging in protected industrial action and whether MEA was justified in terminating the Agreement due to those alleged breaches. MEA argued that the UWU had breached the Agreement by engaging in protected industrial action and that MEA was entitled to terminate the Agreement as a result of those breaches. The UWU, on the other hand, argued that there had been no breaches of the Agreement and that MEA did not have the right to terminate the Agreement.

The court found that the UWU had engaged in protected industrial action that was not permitted under the Agreement. However, the court also found that MEA had not provided sufficient evidence to support its claim that the UWU's actions amounted to a breach of the Agreement that justified termination. The court held that MEA had not established a valid reason for terminating the Agreement and that the termination was therefore invalid. The court refused MEA's application to terminate the Agreement.

The court ordered that the Agreement remain in effect and that MEA and the UWU continue to be bound by its terms. The court also ordered that MEA pay the UWU's costs of the proceeding.

Monadelphous Engineering Associates Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established