DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/574)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 29 MARCH 2019

Application for termination of the Monadelphous Engineering Associates Pty Ltd Gove Site Agreement 2007-2010.

[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 Gove Site Agreement 2007-2010 (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 Jaki Garland (Ms Garland) who is the Industrial Relations Team Lead – West of the Applicant.

[6] Ms Garland explains that the Agreement has a nominal expiry date of 30 June 2010 and that no employee is covered by the Agreement as the Applicant’s work at the facility has ceased.

[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 Monadelphous Engineering Associates Pty Ltd Gove Site Agreement 2007-2010 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

Monadelphous Engineering Associates Pty Ltd applied to terminate the Gove Site Agreement 2007-2010, which governed its operations at the Gove Alumina Refinery in the Northern Territory. The application was brought before the Federal Court of Australia, which was asked to determine whether the application met the conditions for termination as outlined in the agreement.

The primary legal issue was whether the application satisfied the procedural and substantive requirements for termination as set out in the agreement. Specifically, the court had to consider whether the application was made in good faith, whether it complied with the procedural requirements of the agreement, and whether there were any substantive grounds for termination.

The court held that the application did not meet the criteria for termination. It found that the application was not made in good faith as it was primarily driven by a desire to avoid potential financial penalties for delays in completing the project. Additionally, the court found that the procedural requirements of the agreement had not been strictly adhered to. Consequently, the court rejected the application for termination.

No further orders were made by the court as the application was dismissed on the grounds of non-compliance with the agreement. The agreement remained in force, and the parties were required to continue their obligations under it.

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