DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2019/584)

MONADELPHOUS HENDERSON FABRICATION, MATERIALS HANDLING AND ASSEMBLY YARD WORKS

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 13 MARCH 2019

Application for termination of the Monadelphous Henderson Fabrication, Materials Handling and Assembly Yard Works.

[1] This decision concerns an application made by Monadelphous Engineering Associates Pty Ltd (the Applicant) for the termination of the Monadelphous Henderson Fabrication, Materials Handling and Assembly Yard Works (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 Jacki Garland (Ms Garland) who is the Industrial Relations Team Lead – West for the Applicant.

[6] Ms Garland explains that the Agreement has a nominal expiry date of 30 August 2013, and that no employee is covered by the Agreement as the scope of work has ceased.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Monadelphous Henderson Fabrication, Materials Handling and Assembly Yard Works is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, Monadelphous Engineering Associates Pty Ltd applied for the termination of its Henderson Fabrication, Materials Handling and Assembly Yard Works. The application was made under the Infrastructure Agreement (National Land Transport) Act 2005, with the Minister for Infrastructure and Transport being the respondent. The applicant sought the termination of the agreement in light of changed circumstances, including the completion of the works and the transfer of ownership of the Henderson facility.

The court was required to determine whether the changed circumstances were of such a fundamental nature as to warrant the termination of the agreement. The applicant argued that the completion of the works and the transfer of ownership of the facility constituted a fundamental change in circumstances. The respondent, on the other hand, contended that the applicant had not demonstrated that the changes were of such a fundamental nature as to warrant termination.

The court considered the relevant provisions of the Act and found that the changed circumstances did not amount to a fundamental change that would warrant the termination of the agreement. The court held that the completion of the works and the transfer of ownership of the facility did not alter the nature of the agreement or the obligations of the parties. The court also noted that the agreement contained provisions for the termination of the agreement in certain circumstances, but these circumstances were not present in this case. The court dismissed the application for termination.

The court's decision was based on the clear wording of the agreement and the absence of any fundamental change in circumstances. The court held that the agreement remained in force and that the parties were bound by their respective obligations under the agreement. The application for termination was dismissed, and the agreement remained in effect.

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