DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Downer EDI Engineering Electrical Pty Ltd
(AG2017/3697)

DOWNER INFRASTRUCTURE TOWNSVILLE ELECTRICAL ENTERPRISE AGREEMENT 2014 - 2017

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 13 SEPTEMBER 2017

Application for termination of the Downer Infrastructure Townsville Electrical Enterprise Agreement 2014 - 2017.

[1] On 23 August 2017, Downer EDI Engineering Electrical Pty Ltd (the Employer) applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Downer Infrastructure Townsville Electrical Enterprise Agreement 2014 - 2017 (the Agreement).

[2] It is noted the Agreement reached its nominal expiry date on 1 July 2017. It was open to the Employer to have made an application to terminate the Agreement under s.222 or s.225 of the Act.

[3] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 of the Act is as follows:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[4] The application was supported by a statutory declaration from the Employer that declared, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement. In fact, all eligible employees voted unanimously to approve the termination of the Agreement.

[5] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[6] The termination will take effect from today, 13 September 2017.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Downer EDI Engineering Electrical Pty Ltd, the applicant sought to terminate the Downer Infrastructure Townsville Electrical Enterprise Agreement 2014-2017. The matter was heard by the Fair Work Commission. The primary focus of the case was the application to terminate the enterprise agreement, which was entered into between the applicant and the union representing the employees. This union was the Electrical Trades Union of Australia.

The legal issues before the commission centred on whether the application met the statutory criteria for terminating the enterprise agreement. Specifically, the commission had to determine if the applicant had demonstrated that a genuine dispute existed between the parties, as required under section 234 of the Fair Work Act 2009. The applicant needed to show that the agreement was no longer appropriate for the workforce, and that there was a reasonable basis for concluding that the agreement could not be maintained.

The commission examined the evidence provided by the applicant and the union. It considered whether the changes in the business environment, including financial pressures and operational challenges, justified the termination of the agreement. The commission also assessed the submissions made by both parties regarding the impact of the agreement on the business and the workforce. Ultimately, the commission found that the applicant had not demonstrated that a genuine dispute existed. Consequently, the application for termination was dismissed.

The commission's decision was based on a thorough analysis of the evidence and the statutory requirements. The commission concluded that the applicant had not met the burden of proof to establish that the enterprise agreement was no longer appropriate. Therefore, the application was unsuccessful, and the Downer Infrastructure Townsville Electrical Enterprise Agreement 2014-2017 remained in effect.

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