Monadelphous Engineering Pty Ltd T/A Monadelphous Engineering Pty Ltd

[2020] FWCA 566

[2020] FWCA 566

FAIR WORK COMMISSION

DECISION

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

Monadelphous Engineering Pty Ltd T/A Monadelphous Engineering Pty Ltd
(AG2020/78)

MONADELPHOUS ENGINEERING PTY LTD - ABBOTT POINT COAL TERMINAL EXPANSION AGREEMENT 2008

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 5 FEBRUARY 2020

Application for termination of the Monadelphous Engineering Pty Ltd - Abbot Point Coal Terminal Expansion Agreement 2008.

[1] On 15 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 Monadelphous Engineering Associates Pty Ltd Darwin LNG Plant Collective Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The Australian Workers’ Union (AWU) is an employee organisation covered by the Agreement. Correspondence from Ms Stacey Schinnerl, Bargaining Officer and Industrial Advocate for the AWU dated 15 January 2020, was provided to my Chambers indicating the AWU consented to the application and termination of the Agreement.

[3] The application was supported by a statutory declaration of Ms Cayla Jurd, Industrial Relations Advisor of the Employer, sworn on 15 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, there is no requirement to renegotiate or replace the nominally expired Agreement, and that the scope under clause 1.3.1 of the Agreement has ceased.

Legislative provisions

[4] 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.

[5] 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;

(c) an employee organisation 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.’

[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, 5 February 2020.

COMMISSIONER

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<AC317371  PR716397>