Monadelphous Engineering Pty Ltd

[2019] FWCA 6023

[2019] FWCA 6023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Monadelphous Engineering Pty Ltd
(AG2019/2754)

MONADELPHOUS APLNG UPSTREAM CONSTRUCTION PROJECT GREENFIELD AGREEMENT

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 10 SEPTEMBER 2019

Application for termination of the Monadelphous APLNG Upstream Construction Project Greenfield Agreement.

[1] On 29 July 2019 Monadelphous Engineering Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Monadelphous APLNG Upstream Construction Project Greenfield Agreement (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Ms Sasha Ryan, Industrial Relations Advisor of the Employer which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Australian Workers’ Union (AWU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), jointly (“the Unions”) are employee organisations covered by the Agreement.

[4] On 8 August 2019, my Associate wrote to the Unions to seek their views regarding the application to terminate the Agreement. The AWU and the CEPU sent correspondence to my chambers indicating that they do not oppose the termination of the Agreement. The AMWU requested a further opportunity to consider its position on the proposed termination of the Agreement, which was provided to the AMWU.

[5] On 29 August 2019 the AMWU emailed all parties and advised that it had been instructed that works may have commenced or be about to re-commence under the Agreement and the Agreement may therefore continue to apply to employees of the Applicant. The AMWU requested an opportunity to make further enquiries regarding the continued application of the Agreement.

[6] I wrote to the parties through my chambers and allowed an opportunity for all parties to discuss this matter further and to inform my chambers of the outcome of any such discussions.

[7] On 6 September 2019, the AMWU sent correspondence to my chambers indicating that after receiving further instructions and discussing the matter with the Applicant and the other parties, the AMWU had no objection to the application to terminate the Agreement.

[8] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[9] Based on the material contained in the statutory declaration filed with the application, 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.

[10] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[11] 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.

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

[13] The termination will take effect from today, 10 September 2019.

COMMISSIONER

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