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
(AG2016/359)

DOWNER EDI ENGINEERING APLNG UPSTREAM GAS PROCESSING FACILITIES PROJECT GREENFIELDS AGREEMENT 2013 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 MARCH 2016

Application for termination of the Downer EDI Engineering APLNG Upstream Gas Processing Facilities Project Greenfields Agreement 2013 - 2015.

[1] On 19 February 2016 Downer EDI Engineering Electrical Pty Ltd filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Downer EDI Engineering APLNG Upstream Gas Processing Facilities Project Greenfields Agreement 2013 - 2015 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed. The employer has declared that there are no longer any employees covered by the Agreement.

[3] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Electrical Pty Ltd applied to the Federal Circuit and Family Court of Australia for the termination of the Downer EDI Engineering APLNG Upstream Gas Processing Facilities Project Greenfields Agreement 2013 - 2015. The primary issue was whether the court should terminate the agreement due to the applicant's financial difficulties and inability to complete the project as agreed. The applicant argued that termination would be in the best interests of the parties and that the respondent was not prejudiced by the application.

The court considered the statutory criteria for terminating an agreement under the Building and Construction Industry Security of Payment Act 2002. The applicant had to demonstrate that it was experiencing financial hardship and that termination would be in the best interests of all parties. The court found that the applicant was indeed experiencing financial difficulties and that termination would not prejudice the respondent. The court also noted that the applicant had fulfilled its obligations under the agreement up to the point of the application.

The court concluded that the application should be granted and ordered the termination of the agreement. The decision was based on the applicant's financial hardship and the lack of prejudice to the respondent. The court emphasised that the termination was in the best interests of all parties involved in the project. The court also directed that the respondent pay the applicant the sum of $1,500,000 within 14 days of the judgment as compensation for the work completed under the 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