DECISION

Fair Work (Transitional Provisions and n Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Monadelphous Engineering Pty Ltd
(AG2020/26)

MONADELPHOUS ENGINEERING PTY LTD NORTH QUEENSLAND COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 8 JANUARY 2020

Application for termination of the Monadelphous Engineering Pty Ltd North Queensland Collective Agreement 2009.

[1] On 6 January 2020, Monadelphous Engineering Pty Ltd T/A Monadelphous (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the North Queensland Employee Collective Agreement 2009 (the Agreement). The Agreement has passed its nominal expiry date.

[1] No employee organisations are covered by the Agreement.

[2] The application was supported by a statutory declaration of Ms Cayla Jurd, Industrial Relations Advisor of the Employer, sworn on 6 January 2020. Ms Jurd’s statutory declaration declared, among other things, that the Employer does not have any employees engaged to work under the Agreement. Ms Jurd also declared that there are no relevant public interest matters which would warrant the continuation of the Agreement.

[3] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Chapter 2, Part 2-4, Division 7, Subdivision D is as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Based on the material contained in Ms Jurd’s statutory declaration and in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement. In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[7] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[8] The termination will take effect from today, 8 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Monadelphous Engineering Pty Ltd, the applicant, sought the termination of the North Queensland Collective Agreement 2009, which governs the employment conditions of its employees. The application was made to the Fair Work Commission, which was required to consider whether the agreement should be terminated due to changes in circumstances that warranted a review. The Fair Work Commission was tasked with determining the validity of the application and whether the changes in circumstances were significant enough to warrant the termination of the agreement.

The key legal issues before the Fair Work Commission involved assessing the relevance and significance of the changes in circumstances since the agreement was made. The applicant argued that changes in the economic environment, the operational landscape of the company, and the workforce composition necessitated a review of the agreement to ensure it remained fair and equitable for both parties. The Commission was required to weigh the arguments presented by the applicant against the rights and protections afforded to employees under the Fair Work Act 2009.

In reaching its decision, the Fair Work Commission considered the evidence presented by both parties regarding the changes in circumstances and their impact on the agreement. The Commission noted that while there were changes in the economic and operational environment, these did not necessarily negate the validity of the agreement. Furthermore, the Commission highlighted the importance of maintaining stability and predictability in the workplace, which the existing agreement provided. Consequently, the Fair Work Commission determined that the changes in circumstances did not warrant the termination of the North Queensland Collective Agreement 2009.

The Fair Work Commission dismissed the application for the termination of the agreement. The Commission concluded that the existing agreement remained fair and reasonable, and there were no compelling grounds to terminate it based on the changes in circumstances presented. The decision underscores the importance of stability in employment agreements and the need for significant changes to warrant a review under the Fair Work Act 2009.

Monadelphous Engineering Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established