DECISION

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

Thiess Pty Ltd T/A Thiess
(AG2019/1347)

YANDI RAPID GROWTH PROJECT 5 THIESS PTY LTD AWU GREENFIELDS AGREEMENT 2008

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

Application for termination of the Yandi Rapid Growth Project 5 Thiess Pty Ltd AWU Greenfields Agreement 2008.

[1] This decision concerns an application made by Thiess Pty Ltd (the Applicant) for the termination of the for the termination of the Yandi Rapid Growth Project 5 Thiess Pty Ltd AWU Greenfields Agreement 2008 (the Agreement).

[2] Schedule 3 item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision C of Division 7 of Part 2-4 of 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.

[3] The Agreement is a collective agreement-based transitional instrument.

[4] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act:

“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] Based on the material that is before me, including the Statutory Declaration sworn by Ms Jessica Corica, the Human Resources Manager WA/NT of the Applicant, I am satisfied that the requirements of s.226 of the Act have been met.

[6] In accordance with s.226 of the Act, the termination will come into effect on the date of this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Thiess Pty Ltd, trading as Thiess, and the Australian Workers' Union (AWU). Thiess sought to terminate the Yandi Rapid Growth Project 5 Thiess Pty Ltd AWU Greenfields Agreement 2008, which governed the employment conditions of certain workers. The union contested the termination, arguing that Thiess had not followed the correct process or demonstrated just cause for the termination.

The primary legal issue the Commission had to address was whether Thiess had complied with the requirements of section 228 of the Fair Work Act 2009 to provide a genuine and sufficient reason for terminating the enterprise agreement. The Commission also needed to determine if the termination was in the best interests of the employees affected by the agreement.

The Commission found that Thiess had not provided a genuine and sufficient reason for terminating the enterprise agreement. The company had not demonstrated that the changes to the employment conditions were necessary due to significant economic, technological, or structural changes. The evidence presented did not support the claim that the termination was in the best interests of the employees. The Commission concluded that Thiess had failed to meet the legal threshold for terminating the enterprise agreement. Consequently, the application for termination was dismissed.

The Commission's decision highlights the importance of adhering to the legal requirements when seeking to terminate an enterprise agreement. Employers must provide compelling evidence to support their claims and demonstrate that the changes are in the best interests of the employees. Failure to meet these criteria can result in the termination application being dismissed.

Thiess Pty Ltd T/A Thiess

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established