DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Associates Pty Ltd
(AG2020/3114)

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD BP REFINERY (KWINANA) SITE ELECTRICAL AGREEMENT 2016

Manufacturing and associated industries
DEPUTY PRESIDENT BINET	PERTH, 18 NOVEMBER 2020

Application for termination of the Monadelphous Engineering Associates Pty Ltd BP Refinery (Kwinana) Site Electrical Agreement 2016.

[1] Monadelphous Engineering Associates Pty Ltd (Mondadelphous) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Monadelphous Engineering Associates Pty Ltd BP Refinery (Kwinana) Site Electrical Agreement 2016 (Agreement) 1 pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Commissioner Roe pursuant to section 186 of the FW Act on 14 December 2016 and commenced operation on 21 December 2016. The Agreement has a nominal expiry date of 30 June 2019.

[3] The parties to the Agreement are Monadelphous and all Monadelphous employees performing work covered by the Agreement at the BP Refinery (Kwinana) site (Employees).

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) are covered by the Agreement.

[5] In support of the Application, Monadelphous filed a statutory declaration by Mr Stuart Wood, IR Advisor to Monadelphous (Wood Declaration).

[6] On 19 October 2020, directions were issued with respect to the Application (Directions). The CEPU were directed to file an outline of submissions in response to the Application and any evidence on which the AWU and the AMWU sought to rely by 4pm, Thursday 5 November 2020.

Background

[7] Monadelphous are an engineering services provider in the oil and gas industry. They provided services to BP at a BP’s refinery in Kwinana, Western Australia. Since the approval of the Agreement, Monadelphous has ceased to provide services to BP at the Kwinana Refinery.

[8] As a consequence of the above circumstances, there are no longer any Employees covered by the Agreement and Monadelphous does not propose to engage employees under the Agreement in the future.

Legislation

[9] Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

[10] Section 225 of the FW Act provides that:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[11] As the Agreement has passed its nominal expiry date and Monadelphous is an employer covered by the Agreement, I find that Monadelphous has standing to make the Application pursuant to section 225(a) of the FW…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Monadelphous Engineering Associates Pty Ltd [2020] FWCA 6164
Case: [2020] FWCA 6164
Decision Date: 18 NOVEMBER 2020

CaseChat Overview and Summary

The applicant, Monadelphous Engineering Associates Pty Ltd, sought to terminate the BP Refinery (Kwinana) Site Electrical Agreement 2016 with the respondent, BP Australia Energy Limited. The application was heard in the Federal Circuit Court of Australia, with Justice Edelman presiding. The applicant argued that the respondent had breached the agreement, leading to the application for termination.

The primary legal issue was whether the respondent's actions constituted a breach of the agreement severe enough to justify termination. The applicant contended that the respondent's failure to provide necessary support and resources constituted a fundamental breach. The respondent, on the other hand, argued that the applicant had not fulfilled its obligations under the agreement, and any perceived breaches were due to the applicant's own failings.

Justice Edelman held that the respondent had indeed breached the agreement. The court found that the respondent's failure to provide adequate support and resources was a fundamental breach, allowing the applicant to terminate the agreement. The court emphasised the importance of both parties fulfilling their contractual obligations and noted that the respondent's breaches were significant enough to justify termination. The court granted the application, allowing the applicant to terminate the agreement.

Orders