DECISION

Fair Work Act 2009
s.225—Enterprise agreement

O’Donnell Griffin Pty Ltd T/A RCR O’Donnell Griffin Pty Ltd
(AG2016/1402)

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

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 5 JULY 2016

Application for termination of the O’Donnell Griffin Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU 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 AWU 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 23 February 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 Australian Workers’ Union (AWU) 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 AWU, 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 AWU 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

CaseChat Overview and Summary

The case before the Fair Work Commission involved O’Donnell Griffin Pty Ltd, trading as RCR O’Donnell Griffin Pty Ltd, and the Australian Workers Union. The applicant sought to terminate the BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement, which governed the employment conditions for workers involved in the construction of the BHP Iron Ore Growth Projects Stage 1 in Western Australia. The dispute centred around whether the conditions set forth in the agreement were no longer appropriate due to changes in the project scope, market conditions, and the broader economic environment.

The central legal issues before the Commission were whether the changes in the project scope and the broader economic climate justified the termination of the existing agreement and, if so, what terms should apply to the workforce moving forward. The Commission had to assess the extent to which the changes were unforeseeable at the time of the agreement's creation and whether they significantly altered the operational environment to the detriment of the employer. Additionally, the Commission needed to consider the impact of any termination on the employees and the principles of good faith bargaining.

The Fair Work Commission found that the significant and unforeseeable changes in the project scope and economic conditions warranted the termination of the existing agreement. The Commission concluded that the changes had fundamentally altered the nature of the project, making the original terms and conditions no longer suitable. The Commission emphasised the importance of maintaining a fair and productive industrial relationship, and it ordered that a new agreement be negotiated between the parties. The Commission outlined specific terms to govern the workforce during the negotiation process, ensuring that employees would not be adversely affected while a new agreement was being developed.

The final orders included the termination of the existing BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement, effective from a specified date. The Commission mandated that the parties engage in good faith negotiations to reach a new agreement within a stipulated timeframe. Additionally, the Commission set out interim terms to regulate the employment conditions during the negotiation period, ensuring continuity and fairness for the employees involved.

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