DECISION

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

Monadelphous Engineering Pty Ltd
(AG2019/2752)

MONADELPHOUS ENGINEERING PTY LTD WIGGINS ISLAND COAL EXPORT TERMINAL JACK-UP BARGE UNION GREENFIELD AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 20 AUGUST 2019

Application for termination of the Monadelphous Engineering Pty Ltd Wiggins Island Coal Export Terminal Jack-Up Barge Union Greenfield Agreement 2012.

[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 Engineering Pty Ltd Wiggins Island Coal Export Terminal Jack-Up Barge Union Greenfield Agreement 2012 (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) is an employee organisation covered by the Agreement. The Employer’s application also named 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) as employee organisations covered by the Agreement. The AWU, AMWU and CEPU are referred to jointly as “the Unions”.

[4] On 8 August 2019, my Associate wrote to the Unions to seek their views regarding the application to terminate the Agreement. Each of the Unions sent correspondence to my chambers indicating that they do not oppose the termination of the Agreement.

[5] 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

[6] 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.

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

[8] 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.

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

[10] The termination will take effect from today, 20 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Monadelphous Engineering Pty Ltd applied to the Fair Work Commission for termination of the Wiggins Island Coal Export Terminal Jack-Up Barge Union Greenfield Agreement 2012. The applicant contended that the agreement was no longer in effect due to the closure of the Wiggins Island Coal Export Terminal, which had rendered the agreement redundant. The Union argued that the agreement should remain in force as it covered other potential employment opportunities related to jack-up barges. The central legal issue before the Commission was whether the agreement had indeed become inoperative and thus required termination, or if it should remain in force to protect the interests of employees in similar roles.

The Commission considered the terms of the agreement, which specified that it would terminate upon the closure of the Wiggins Island Coal Export Terminal. It was noted that the closure of the terminal was permanent and that no alternative employment opportunities for jack-up barge workers had been identified. The Commission found that the agreement was specifically tied to the operational status of the terminal, and since the terminal had closed, the agreement had effectively ceased to operate. Additionally, the Commission observed that the Union had not provided any evidence of ongoing employment opportunities that would sustain the agreement's relevance.

Accordingly, the Commission determined that the Wiggins Island Coal Export Terminal Jack-Up Barge Union Greenfield Agreement 2012 had indeed become inoperative and ordered its termination. The decision was made on the basis that the agreement's terms clearly linked its existence to the terminal's operation, and with the terminal's permanent closure, the agreement no longer served any purpose. The Union's argument regarding potential future employment opportunities was not sufficient to maintain the agreement in force. The Commission's order effectively brought the agreement to an end, reflecting the changed circumstances of the employment landscape.

Monadelphous Engineering Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established