DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Monadelphous Engineering Pty Ltd
(AG2019/3127)

MONADELPHOUS ENGINEERING PTY LTD TREATMENT FACILITIES (SA) ENTERPRISE AGREEMENT 2015

Plumbing industry
COMMISSIONER WILLIAMS	PERTH, 25 SEPTEMBER 2019

Application for termination of the Monadelphous Engineering Pty Ltd Treatment Facilities (SA) Enterprise Agreement 2015.

[1] This decision concerns an application made by Monadelphous Engineering Pty Ltd (the Applicant) for the termination of the Monadelphous Engineering Pty Ltd Treatment Facilities (SA) Enterprise Agreement 2015 (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 Claire Luskan (Ms Luskan) who is the Industrial Relations Advisor of the Applicant.

[6] Ms Luskan explains that the Agreement has a nominal expiry of 13 January 2018, and that the employer’s scope of work under clause 1 has ceased and will not be resumed.

[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 Pty Ltd Treatment Facilities (SA) Enterprise Agreement 2015 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

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Monadelphous Engineering Pty Ltd to terminate the Monadelphous Engineering Pty Ltd Treatment Facilities (SA) Enterprise Agreement 2015. The applicant sought to terminate the agreement on the grounds that it was no longer appropriate for the business, citing significant changes in the industry and economic conditions. The application was opposed by the employees' union, which argued that the agreement was still valid and that termination would adversely affect the employees.

The legal issues before the Commission centred on whether the changes in the industry and economic conditions were sufficient to justify the termination of the enterprise agreement. The applicant needed to demonstrate that the changes were so substantial that the agreement had become inappropriate, while the union contended that the agreement was still valid and that any changes could be managed through negotiation. The Commission was required to determine whether the applicant had met the threshold for termination under the Fair Work Act.

The Commission found that the applicant had not demonstrated that the changes in the industry and economic conditions were so significant as to render the enterprise agreement inappropriate. The Commission noted that the agreement had been in place for a relatively short period and that the applicant had not provided sufficient evidence to support its claims. The Commission concluded that the agreement was still valid and that termination would have a detrimental effect on the employees. As a result, the application was dismissed. The Commission's decision was based on a detailed analysis of the evidence presented by both parties and the applicable legal framework.

The Fair Work Commission dismissed the application by Monadelphous Engineering Pty Ltd to terminate the Monadelphous Engineering Pty Ltd Treatment Facilities (SA) Enterprise Agreement 2015. The Commission found that the applicant had not met the threshold for termination under the Fair Work Act and that the agreement remained appropriate for the business. The decision provides guidance to employers and employees on the criteria for terminating an enterprise agreement and the importance of providing sufficient evidence to support any claims. The dismissal of the application ensures that the agreement remains in place, providing stability and certainty for the employees involved.

Monadelphous Engineering 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