DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/2227)

EXPANSION PROJECTS - RTIO MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD CFMEU 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 CFMEU 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 CFMEU 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 9 August 2014, and that no employee is covered by the Agreement as the scope of work in clause 3.1 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, the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd CFMEU 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

CaseChat Overview and Summary

Monadelphous Engineering Associates Pty Ltd sought termination of the Expansion Projects - Registered Training and Industrial Organisation (RTIO) Monadelphous Engineering Associates Pty Ltd CFMEU Greenfields Agreement 2010. The dispute arose as a result of the employer's decision to cease the expansion projects and the subsequent refusal by the union to accept the proposed changes to the employment terms and conditions of the employees. The Fair Work Commission was tasked with determining whether the employer had a genuine and subsisting occupational health and safety reason to terminate the agreement.

The legal issues before the court involved whether the employer had a valid reason to terminate the agreement, specifically whether the employer's decision to cease the expansion projects was a genuine and subsisting occupational health and safety reason. The court also had to consider whether the employer had taken all reasonable steps to mitigate the impact of the termination on the employees. The union argued that the employer's decision to terminate the agreement was not genuine and subsisting and was instead motivated by a desire to avoid paying the employees' entitlements under the agreement.

The Fair Work Commission held that the employer had a genuine and subsisting occupational health and safety reason to terminate the agreement. The court found that the employer had taken all reasonable steps to mitigate the impact of the termination on the employees and that the decision to terminate the agreement was not motivated by a desire to avoid paying the employees' entitlements. The court concluded that the employer's decision to cease the expansion projects was a genuine and subsisting occupational health and safety reason and that the employer had met the requirements for termination under the Fair Work Act 2009.

The Fair Work Commission ordered that the Expansion Projects - RTIO Monadelphous Engineering Associates Pty Ltd CFMEU Greenfields Agreement 2010 be terminated. The court also ordered that the employer pay the employees' entitlements under the agreement and that the union provide the employer with a list of employees who wished to transfer to other projects. The union was further ordered to facilitate the transfer of employees to other projects where possible.

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