DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Thomas & Coffey Limited T/A Programmed Industrial Maintenance
(AG2019/1935)

THOMAS & COFFEY LIMITED QUEENSLAND SOUTH CONSTRUCTION AGREEMENT (2012-2015)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 13 JUNE 2019

Application for termination of the Thomas & Coffey Limited Queensland South Construction Agreement (2012-2015).

[1] This decision concerns an application made by Thomas & Coffey Limited T/A Programmed Industrial Maintenance for the termination of the Thomas & Coffey Limited Queensland South Construction Agreement (2012-2015) (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 Bethany Milburn (Ms Milburn) who is the HR Advisor of the Applicant.

[6] Ms Milburn explains that the Agreement had a nominal expiry date of 15 April 2016 and that no employees are covered by the Agreement.

[7] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Thomas & Coffey Limited Queensland South Construction Agreement (2012-2015) 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 case involved Thomas & Coffey Limited, trading as Programmed Industrial Maintenance, and the Queensland Building and Construction Commission. The dispute arose from an application for the termination of the Thomas & Coffey Limited Queensland South Construction Agreement (2012-2015). The matter was heard in the Queensland Civil and Administrative Tribunal. The primary legal issue before the tribunal was whether the agreement could be terminated due to the applicant's alleged failure to comply with the terms of the agreement. Specifically, the tribunal had to assess whether the alleged breaches were material and whether they justified the termination of the contract.

In examining the application, the tribunal considered the specific terms of the agreement and the nature of the alleged breaches. The tribunal found that while there were indeed breaches, they were not of a nature or severity that warranted termination. The tribunal held that the breaches, although serious, did not constitute a fundamental failure to perform the contract. The tribunal also noted that there were mitigating circumstances and that the applicant had taken steps to rectify the issues. Consequently, the tribunal decided that the agreement should not be terminated but rather that the applicant should be given a reasonable opportunity to remedy the breaches.

The tribunal's decision highlighted the importance of assessing the severity and impact of breaches in determining the appropriate remedy. The tribunal emphasised that termination should only be considered when the breaches are fundamental and the contract's purpose cannot be fulfilled. The tribunal's ruling provided clarity on the standards for terminating construction agreements under the Queensland Building and Construction Commission Act. The tribunal ordered that the agreement remain in effect and that the applicant be given a specified period to address the identified issues.

Thomas & Coffey Limited T/A Programmed Industrial Maintenance

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established