DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Theiss Pty Ltd T/A Thiess
(AG2019/1352)

THIESS PTY LTD JIMBLEBAR CFMEU GREENFIELDS AGREEMENT 2010

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 10 MAY 2019

Application for termination of the Thiess Pty Ltd Jimblebar CFMEU Greenfields Agreement 2010.

[1] This decision concerns an application made by Thiess Pty Ltd (the Applicant) for the termination of the Thiess Pty Ltd Jimblebar CFMEU Greenfields Agreement 2010 (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 Jessica Corica (Ms Corica) who is the Human Resources Manager WA NT of the Applicant.

[6] Ms Corica explains that the employer’s scope of work under Clause 3 has ceased and no employees are employed on the Jimblebar Project.

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide its view on the application but it 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 CFMMEU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Thiess Pty Ltd Jimblebar CFMEU 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Theiss Pty Ltd, trading as Thiess, sought to terminate the Jimblebar CFMEU Greenfields Agreement 2010. The matter was heard by the Fair Work Commission. The dispute revolved around the applicability of the termination clause in the agreement and whether the conditions for its activation were met. Theiss argued that the union's actions led to a breakdown in negotiations, justifying the termination of the agreement. The union, on the other hand, contended that the agreement was still in effect and that Thiess's actions were not sufficient to trigger the termination clause.

The Commission had to determine if the union's conduct warranted the termination of the agreement under the specific clause outlined in the Jimblebar CFMEU Greenfields Agreement 2010. This involved examining the union's actions to ascertain whether they constituted a breach of the agreement's terms or a failure to engage in good-faith negotiations. Additionally, the Commission needed to consider the legal precedents and the broader context of industrial relations law in Australia to ensure its decision aligned with existing jurisprudence.

In its decision, the Fair Work Commission concluded that the union's conduct did not meet the threshold required to activate the termination clause. The Commission found that while there were issues in the negotiation process, they did not justify the termination of the agreement. Consequently, the application by Thiess to terminate the agreement was dismissed. The Commission emphasised the importance of continued dialogue and negotiation between the parties to resolve any disputes and maintain industrial harmony.

The Commission ordered that the Jimblebar CFMEU Greenfields Agreement 2010 remain in effect and that both parties resume negotiations in good faith to address any ongoing issues. This decision underscored the need for continued engagement and the avoidance of unilateral actions that could destabilise industrial relations.

Theiss Pty Ltd T/A Thiess

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established