Downer EDI Engineering Electrical Pty Ltd

[2016] FWCA 2592

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 T/A Downer EDI Engineering

(AG2016/752)

DOWNER AUSTRALIA ERA PROJECT UNION GREENFIELDS

AGREEMENT

Northern Territory

COMMISSIONER WILSON

MELBOURNE, 22 APRIL 2016

Application for termination of the Downer Australia ERA Project Union Greenfields

Agreement.

[1] On 1 April 2016, Downer EDI Engineering Electrical Pty Ltd, trading as Downer EDI

Engineering, made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to

terminate the Downer Australia ERA Project Union Greenfields Agreement (the Agreement).

[2] The material which has been filed and to which I have given consideration includes

the initial application, and an accompanying statutory declaration filed by the employer in

support of the application. The application provides that there are currently no employees

covered by the Agreement. Both the Australian Workers’ Union (the AWU), and the

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU),

who are covered by the Agreement, do not object to the termination of the Agreement. I am

satisfied that each of the requirements of s.226 of the Act have been met. Therefore I must

approve the termination of the Agreement.

[3] The Agreement is terminated and, pursuant to s.227 of the Act, the termination will

come into effect from 22 April 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Electrical Pty Ltd, trading as Downer EDI Engineering, applied for the termination of the Downer Australia ERA Project Union Greenfields Agreement (the Agreement) under section 225 of the Fair Work Act 2009 (the Act). The application was made on 1 April 2016, and the relevant unions, the Australian Workers’ Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, did not object to the termination. The applicant, Downer EDI Engineering, stated that no employees were currently covered by the Agreement. The Commissioner, Wilson, was tasked with deciding whether to approve the application based on the provisions of the Act.

The central legal issue before the Commissioner was whether the conditions set out in section 226 of the Act for terminating the enterprise agreement had been met. Section 226 of the Act requires, among other things, that there are no employees covered by the agreement, and that the unions covered by the agreement do not object to the termination. Given that both conditions were satisfied, the Commissioner had to determine whether the application met all necessary legal requirements for the termination of the Agreement.

The Commissioner concluded that all requirements for the termination of the Agreement under section 226 of the Act had been met. Consequently, the Commissioner approved the termination of the Downer Australia ERA Project Union Greenfields Agreement. The termination took effect on 22 April 2016, as per section 227 of the Act. The Commissioner’s decision was based on the evidence provided, including the statutory declaration from the employer and the lack of objection from the relevant unions.

The final orders of the Commissioner were that the Downer Australia ERA Project Union Greenfields Agreement was terminated, effective from 22 April 2016. The Commissioner’s decision was made in accordance with the Fair Work Act 2009, and no employees were covered by the Agreement at the time of the termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established