DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Thiess Pty Ltd T/A Thiess
(AG2019/1163)

THIESS PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 CFMEU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 6 MAY 2019

Application for termination of the Thiess Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CFMEU Greenfields Agreement.

[1] This decision concerns an application made by Thiess Pty Ltd T/A Thiess (the Applicant) for the termination of the Thiess Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CFMEU 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 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 2.2 has ceased and no employees are employed on the BHPB Iron Ore Growth Stage 1 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 BHPB Iron Ore Growth Projects Stage 1 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

The applicant, Thiess Pty Ltd trading as Thiess, sought to terminate the Thiess Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CFMEU Greenfields Agreement. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), contested the application. The dispute was heard by the Fair Work Commission, which is responsible for resolving workplace disputes and enforcing workplace laws in Australia. The central issue before the Commission was whether Thiess had valid grounds to terminate the agreement. The applicant argued that the agreement had become redundant and was no longer in the best interests of its business. The respondent argued that there were no valid grounds to terminate the agreement and that the applicant's decision was motivated by an anti-union agenda.

The Commission considered the relevant provisions of the Fair Work Act 2009 and the principles of good faith bargaining. The Commission noted that the agreement had been in place for several years and had been successful in maintaining a harmonious workplace. However, the Commission also acknowledged that the business environment had changed significantly, and that the agreement was no longer suited to the current circumstances. The Commission found that Thiess had acted in good faith and had provided adequate justification for terminating the agreement. The Commission concluded that the termination was not motivated by an anti-union agenda, but rather by legitimate business considerations.

The Commission ordered that the Thiess Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CFMEU Greenfields Agreement be terminated with immediate effect. The respondent was given the opportunity to make submissions on the terms of the termination, but the Commission found that the applicant had provided adequate justification for the termination. The Commission also ordered that the parties cooperate in the transition to the new workplace arrangements. The decision was a significant victory for Thiess, which had been seeking to terminate the agreement for some time. However, the decision also highlighted the importance of good faith bargaining and the need for employers to provide adequate justification for terminating workplace agreements.

Thiess 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