DECISION

Fair Work Act 2009
s.225—Enterprise agreement

O’Donnell Griffin Pty Ltd T/A RCR O’Donnell Griffin Pty Ltd
(AG2016/1405)

O’DONNELL GRIFFIN PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 CEPU GREENFIELDS AGREEMENT

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 5 JULY 2016

Application for termination of the O’Donnell Griffin Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement.

[1] This decision concerns an application made by O’Donnell Griffin Pty Ltd T/A RCR O’Donnell Griffin Pty Ltd (the applicant) for the termination of the O’Donnell Griffin Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement (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 Tessa Hamer (Ms Hamer) who is a Human Resource Advisor of the applicant.

[6] Ms Gordon explains that the Agreement had a nominal expiry date of 7 March 2016 and that the applicant no longer employs any person covered under the Agreement as the construction work covered by the Agreement has been completed.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was invited to provide its view on the application but 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 O’Donnell Griffin Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement 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

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, the case of O’Donnell Griffin Pty Ltd T/A RCR O’Donnell Griffin Pty Ltd involved an application for the termination of the BHP Billiton Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement. The application was brought by O’Donnell Griffin Pty Ltd, who sought to terminate the agreement due to alleged breaches by the other party. The dispute centred on whether the alleged breaches were material and whether termination was an appropriate remedy.

The court was tasked with determining the existence and significance of the alleged breaches, as well as the validity of the termination clause in the agreement. Key issues included the interpretation of the contract terms, the applicability of the termination clause, and the legal consequences of the alleged breaches. The court needed to assess whether the breaches were of a nature that justified termination and whether the termination clause was properly invoked.

The Federal Circuit Court examined the terms of the agreement and the nature of the alleged breaches. It considered whether the breaches were material and whether they justified termination under the terms of the agreement. The court concluded that the breaches were indeed material and that the termination clause was properly exercised. The court found that the termination was justified and appropriate given the circumstances. Consequently, the court granted the application and terminated the agreement.

The court's final orders included the termination of the BHP Billiton Iron Ore Growth Projects Stage 1 CEPU Greenfields Agreement between O’Donnell Griffin Pty Ltd and the other party. The court confirmed that the termination was effective and that both parties were relieved from further obligations under the agreement.

O’Donnell Griffin Pty Ltd T/A RCR O’Donnell Griffin 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