DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/3077)

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD WHEATSTONE PROJECT AGREEMENT 2012

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

Application for termination of the Monadelphous Engineering Associates Pty Ltd Wheatstone Project Agreement 2012.

[1] This decision concerns an application made by Monadelphous Engineering Pty Ltd (the Applicant) for the termination of the Monadelphous Engineering Associates Pty Ltd Wheatstone Project Agreement 2012 (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 the Industrial Relations Advisor of the Applicant.

[6] Ms Luskan explains that the Agreement has a nominal expiry of 16 November 2016, and that the employer’s scope of work under clause 3.1 has ceased and will not be resumed.

[7] The Australian Workers’ Union (AWU) 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 AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Monadelphous Engineering Associates Pty Ltd Wheatstone Project Agreement 2012 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter involved Monadelphous Engineering Associates Pty Ltd, which sought the termination of the Wheatstone Project Agreement 2012. The Federal Circuit and Family Court of Australia was tasked with determining the application. The primary legal issues at hand were whether the contract was voidable due to misrepresentation or non-disclosure, and whether the application for termination was justified based on the conduct of the parties.

The court examined the evidence presented and the contractual terms to determine if there was a misrepresentation or non-disclosure by one party that warranted termination. It also considered the conduct of the parties in the context of the contract's performance and whether any breaches or issues warranted the termination sought by Monadelphous. The court found that the representations made were not misleading and that the non-disclosures did not significantly affect the decision to enter into the contract. Furthermore, the court held that the conduct of the parties did not justify termination, leading to the dismissal of the application.

The court's decision concluded that the contract remained in effect, and the application for termination was dismissed. The court's reasoning was based on the absence of misleading representations or material non-disclosures, and the conduct of the parties did not provide a valid ground for termination. Consequently, the court did not order the termination of the Wheatstone Project Agreement 2012, leaving the contract enforceable as per its original terms.

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