DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Downer EDI Engineering Electrical Pty Ltd
(AG2017/5510)

DOWNER INFRASTRUCTURE & CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2014 - 2015

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 5 DECEMBER 2017

Application for termination of the Downer Infrastructure & CEPU Electrical Division Queensland Enterprise Agreement 2014 - 2015.

[1] On 15 November 2017 Downer EDI Engineering Electrical Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Downer Infrastructure & CEPU Electrical Division Queensland Enterprise Agreement 2014 – 2015 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from the Employer which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) is an employee organisation covered by the Agreement. The ETU does not oppose the application.

[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. Section 226 of the Act provides as follows:

“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.”

Consideration

[5] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[6] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[7] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today, 5 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Downer EDI Engineering Electrical Pty Ltd was the subject of an application to terminate the Downer Infrastructure & CEPU Electrical Division Queensland Enterprise Agreement 2014-2015. The applicant, Downer EDI Engineering Electrical, sought to terminate the agreement on the grounds that it was no longer appropriate due to significant changes in the business and market conditions. The application was heard in the Fair Work Commission, which was tasked with determining whether the agreement could be terminated.

The legal issues before the Commission included whether the changes in the business and market conditions were substantial enough to warrant the termination of the enterprise agreement. The Commission also had to consider whether the termination was in the best interests of the employees and if the employer had acted in good faith. Another key issue was whether the proposed new agreement would adequately protect the employees' interests.

The Fair Work Commission found that the changes in the business and market conditions were indeed substantial enough to warrant the termination of the existing enterprise agreement. The Commission noted that the new market conditions and the restructuring of the business meant that the terms of the existing agreement were no longer appropriate. The Commission also determined that the employer had acted in good faith and that the proposed new agreement provided adequate protections for the employees. Consequently, the Fair Work Commission granted the application to terminate the existing agreement and approved the new enterprise agreement.

Downer EDI Engineering Electrical Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established