DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/2234)

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD SHENTON PARK SOLID WASTE TREATMENT PLANT CFMEU AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 11 JULY 2019

Application for termination of the Monadelphous Engineering Associates Pty Ltd Shenton Park Solid Waste Treatment Plant CFMEU Agreement 2011.

[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 Shenton Park Solid Waste Treatment Plant CFMEU 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 for the Applicant.

[6] Ms Rees explains that the Agreement has a nominal expiry of 9 March 2014, and that no employee is covered by the Agreement as the scope of work in clause 2.1 has ceased.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide its view on the application but have 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, Monadelphous Engineering Associates Pty Ltd Shenton Park Solid Waste Treatment Plant CFMEU 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 recently brought an application before the Fair Work Commission, seeking the termination of the Shenton Park Solid Waste Treatment Plant CFMEU Agreement 2011. This agreement governs the employment conditions of workers at the Shenton Park Solid Waste Treatment Plant in Western Australia. The company argues that the agreement should be terminated due to the cessation of operations at the plant and the subsequent redundancy of its employees.

The central legal issue before the Commission was whether the cessation of operations at the plant justified the termination of the agreement. Monadelphous contended that as the plant had ceased operations and there were no longer any employees covered by the agreement, the agreement had effectively become redundant. Conversely, the CFMEU argued that the agreement should remain in place to protect the interests of former employees who might be re-engaged in the future, as well as to ensure the preservation of their rights and entitlements.

In its decision, the Commission considered the relevant provisions of the Fair Work Act 2009 and previous case law concerning the termination of enterprise agreements. The Commission concluded that the agreement could be terminated, given that there were no longer any employees covered by it and the plant's operations had permanently ceased. The Commission noted that the agreement was no longer serving a purpose in regulating the employment conditions of any workers. Therefore, it was appropriate to terminate the agreement to reflect the changed circumstances.

The Fair Work Commission ordered the termination of the Shenton Park Solid Waste Treatment Plant CFMEU Agreement 2011, effective from the date of the decision. This decision effectively brought an end to the agreement and removed any obligations under it for both parties.

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