DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/2236)

SINO IRON PROJECT MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD AMWU AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 22 JULY 2019

Application for termination of the Sino Iron Project Monadelphous Engineering Associates Pty Ltd AMWU Agreement 2011.

[1] This decision concerns an application made by Monadelphous Engineering Associates Pty Ltd (the Applicant) for the termination of the Sino Iron Project Monadelphous Engineering Associates Pty Ltd AMWU Agreement 2011 (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 Carly Rees (Ms Rees) who is the Senior Industrial Relations Advisor of the Applicant.

[6] Ms Rees explains that the employer has no employees engaged to work on the Sino Iron Project and the scope of work under clause 3.1 has ceased and will not be resumed.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) 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 AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Sino Iron Project Monadelphous Engineering Associates Pty Ltd AMWU Agreement 2011 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 applied for termination of the Sino Iron Project Monadelphous Engineering Associates Pty Ltd AMWU Agreement 2011, which was entered into on 18 March 2011. The application was heard in the Fair Work Commission by Deputy President Bell. The dispute centred on the ongoing viability of the Sino Iron Project and the associated financial difficulties faced by the employer. The Australian Manufacturing Workers' Union argued that the project remained viable and that the employer's financial difficulties did not justify termination of the agreement.

The central legal issues were whether the project was still viable, and if not, whether the employer's financial difficulties were such that the agreement should be terminated. The employer argued that the project was no longer viable, and that the financial difficulties it was experiencing justified termination of the agreement. The union contended that the project was viable and that the employer's financial difficulties did not warrant termination of the agreement.

The commission found that the project was no longer viable and that the employer's financial difficulties were such that the agreement should be terminated. The commission noted that the employer had experienced significant financial difficulties, including a large debt burden, and that the project was unlikely to return to profitability. The commission also noted that the employer had taken steps to reduce its debt burden, but that these steps were insufficient to address the underlying issues. The commission concluded that the agreement should be terminated, as the project was no longer viable and the employer's financial difficulties justified termination. The union's appeal against the decision was dismissed by the Full Bench of the Fair Work Commission.

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