DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/596)

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

Application for termination of the Monadelphous Engineering Associates Pty Ltd Henderson Electrical Yard Works Union Greenfields Agreement 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 Henderson Electrical Yard Works Union 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 Jaki Garland (Ms Garland) who is the Industrial Relations Team Lead – West of the Applicant.

[6] Ms Garland explains that the Agreement had a nominal expiry date of 30 August 2013 and that no employee is covered by the Agreement as the Applicant’s work at the facility has ceased.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 CEPU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Monadelphous Engineering Associates Pty Ltd Henderson Electrical Yard Works Union 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

The matter before the Fair Work Commission involved an application by Monadelphous Engineering Associates Pty Ltd (the applicant) to terminate the Union Greenfields Agreement 2010 (the Agreement) with the Electrical Trades Union of Australia (the union). The dispute arose in the context of the applicant's proposed changes to the workplace structure, which it claimed necessitated the termination of the existing enterprise agreement. The Commission was required to determine whether the application satisfied the statutory criteria for terminating an enterprise agreement.

The principal legal issue before the Commission was whether the applicant had demonstrated that the changes it proposed to the workplace structure constituted a genuine restructure that warranted the termination of the Agreement. The applicant argued that the changes, which included the introduction of new roles and the restructuring of existing roles, were significant enough to warrant the termination of the Agreement. The union, on the other hand, contended that the changes did not amount to a genuine restructure and that the applicant was attempting to use the termination process as a means of avoiding the terms of the Agreement.

In assessing the application, the Commission considered the nature and extent of the changes proposed by the applicant, as well as the reasons for the changes and the impact they would have on the employees. The Commission found that the applicant had not demonstrated that the changes constituted a genuine restructure that warranted the termination of the Agreement. The Commission held that the changes proposed by the applicant were not of such a nature or extent as to warrant the termination of the Agreement, and that the applicant had not demonstrated that the changes would result in significant benefits to the business or the employees. The Commission further found that the applicant had not demonstrated that the changes were necessary or that there were no alternative means of achieving the same outcomes without terminating the Agreement.

Accordingly, the Commission dismissed the applicant's application for the termination of the Agreement. The Commission held that the applicant had not satisfied the statutory criteria for terminating the Agreement and that the Agreement remained in force. The Commission also made orders for the applicant to pay the union's costs 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