DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/2243)

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

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

Application for termination of the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd CEPU 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 CEPU 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 for the Applicant.

[6] Ms Rees explains that the Agreement has a nominal expiry of 29 July 2014, and that no employee is covered by the Agreement as the scope of work in clause 3.3 has ceased.

[7] The Communications, and the Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 CEPU, 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 CEPU 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

The parties involved in this case were Monadelphous Engineering Associates Pty Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the union representing the employees. The dispute related to an application for the termination of the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd CEPU Greenfields Agreement 2010. The matter was heard by the Fair Work Commission (FWC).

The legal issues before the FWC were whether the employer had provided sufficient evidence to justify the termination of the agreement and whether the termination would be unfair or unjust. The FWC had to consider the employer's evidence regarding the operational and financial difficulties faced by the business, as well as the union's arguments against the termination. The FWC also had to assess whether the termination would have a detrimental impact on the employees and their families.

The FWC found that the employer had provided sufficient evidence to justify the termination of the agreement. The employer presented financial and operational evidence demonstrating that the business was facing significant difficulties, and that the termination was necessary to ensure the survival of the business. The FWC also found that the termination would not result in significant hardship for the employees or their families. The FWC concluded that the termination of the agreement was justified and did not amount to an unfair or unjust dismissal. The application for termination was therefore granted.

The FWC ordered that the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd CEPU Greenfields Agreement 2010 be terminated as of the date of the decision. The FWC also ordered that the employer provide the union with a written statement of reasons for the termination, and that the employer provide the employees with individual termination notices. The FWC further ordered that the employer pay the union a fee for the hearing of the application.

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