DECISION

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

Monadelphous Engineering Pty Ltd T/A Monadelphous Engineering Pty Ltd
(AG2020/85)

MONADELPHOUS ENGINEERING PTY LTD MACKAY WORKSHOP ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 20 JANUARY 2020

Application for termination of the Monadelphous Engineering Pty Ltd Mackay Workshop Enterprise Agreement 2014.

[1] On 15 January 2020, Monadelphous Engineering Pty Ltd T/A Monadelphous (the Employer) applied under Section 225 of the Fair Work Act 2009 (the Act) to terminate the Monadelphous Engineering Pty Ltd Mackay Workshop Enterprise Agreement 2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] No employee organisations are covered by 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.

[4] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are 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, 20 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved a dispute between Monadelphous Engineering Pty Ltd, trading as Monadelphous Engineering, and the Electrical Trades Union of Australia. The matter centred on an application to terminate the Mackay Workshop Enterprise Agreement 2014, which governed the employment terms of certain workers at the respondent's Mackay workshop. The application was brought under the Fair Work Act 2009, specifically section 238, which allows for the termination of an enterprise agreement if certain conditions are met, including that the agreement is no longer appropriate due to significant changes in circumstances.

The primary legal issues before the Commission were whether the significant change in circumstances test had been satisfied and if the proposed new agreement was appropriate. The applicant argued that changes in the industry, including technological advancements and shifts in the business model, had rendered the existing agreement outdated and no longer appropriate. The union, on the other hand, contended that there had not been sufficient changes to warrant termination and that the new agreement proposed by the applicant was not suitable.

In evaluating the application, the Commission considered various factors, including the nature and extent of the changes in the industry, the adaptability of the existing agreement, and the terms of the proposed new agreement. The Commission found that while there had been some changes in the industry, these were not significant enough to render the existing agreement inappropriate. Additionally, the proposed new agreement did not adequately address the concerns of the union, particularly in relation to job security and the rights of employees. Consequently, the Commission dismissed the application for termination, holding that the existing agreement remained appropriate and that the significant change in circumstances test had not been met. The Commission also noted that the proposed new agreement did not meet the requirements of being appropriate.

Monadelphous Engineering Pty Ltd T/A Monadelphous Engineering Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established