DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/2228)

EXPANSION PROJECTS - RTIO MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD AMWU GREENFIELDS AGREEMENT 2010

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

Application for termination of the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd AMWU Greenfields Agreement 2010.

[1] This decision concerns an application made by Monadelphous Engineering Associates Pty Ltd (the Applicant) for the termination of the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd AMWU Greenfields Agreement 2010 (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’s scope of work under Clause 3.1 has ceased and will not be resumed and the Agreement does not currently apply to any employees.

[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 Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd AMWU Greenfields Agreement 2010 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

In the case before the Fair Work Commission, Monadelphous Engineering Associates Pty Ltd sought to terminate the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd AMWU Greenfields Agreement 2010. The applicant, a civil and electrical infrastructure company, argued that the agreement had become redundant due to significant changes in the scope and nature of its operations. The Australian Manufacturing Workers' Union (AMWU) opposed the application, asserting that the agreement remained relevant and should be retained.

The central legal issues before the Commission were whether the changes in the applicant's operations were substantial enough to render the existing agreement redundant, and if so, whether termination of the agreement was in the best interests of the employees and the overall fairness of the workplace. The Commission had to balance the applicant's need for flexibility in its operations against the protection of employee rights and the principles of good faith bargaining.

After considering the evidence and submissions from both parties, the Fair Work Commission determined that the changes in the applicant's operations warranted the termination of the existing agreement. The Commission found that the agreement had become redundant and that terminating it was in the best interests of all parties, including the employees. The Commission emphasised the importance of maintaining good faith in the bargaining process and acknowledged the significant changes in the applicant's operations that justified the termination of the agreement.

The Commission terminated the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd AMWU Greenfields Agreement 2010, effective from the date of the decision. The Commission also directed the parties to negotiate in good faith to reach a new agreement that would reflect the current operational realities and protect the interests of all stakeholders.

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