DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Electrical Pty Ltd
(AG2019/2305)

DOWNER EDI ENGINEERING POWER PTY LTD COMMERCIAL SECTOR ENTERPRISE AGREEMENT 2014

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 10 JULY 2019

Application for termination of the Downer EDI Engineering Power Pty Ltd Commercial Sector Enterprise Agreement 2014.

[1] This decision concerns an application made by Downer EDI Engineering Electrical Pty Ltd (the Applicant) for the termination of the Downer EDI Engineering Power Pty Ltd Commercial Sector Enterprise Agreement 2014 (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 Mr Robert Twomey (Mr Twomey), who is the Industrial Relations Manager – West of the Applicant.

[6] Mr Twomey explains the Agreement has passed its nominal expiry, does not employ any employees which fall under clause 2 of the Agreement and there are no foreseeable works where the scope of the Agreement could apply to employees.

[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] Downer EDI Engineering Power Pty Ltd Commercial Sector Enterprise Agreement 2014 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

Downer EDI Engineering Electrical Pty Ltd recently faced a significant application before the Fair Work Commission, where the applicant sought termination of the Downer EDI Engineering Power Pty Ltd Commercial Sector Enterprise Agreement 2014. This agreement governs the employment terms of various workers employed by the respondent. The application arose from the applicant's contention that the enterprise agreement was no longer suitable due to significant changes in the commercial environment and operational needs, warranting a review and potential termination of the existing agreement.

The central legal issue before the Commission was whether the application met the statutory criteria for terminating an enterprise agreement under the Fair Work Act 2009. Specifically, the applicant had to demonstrate that there had been a significant change in circumstances since the agreement was made, which rendered the agreement unsuitable. Additionally, the Commission had to consider whether the termination of the agreement would be in the best interests of the employees involved, balancing the applicant's needs with the potential impact on the workforce.

In examining these issues, the Commission considered the evidence presented by the applicant regarding the significant changes in the commercial environment, including shifts in market dynamics, technological advancements, and operational efficiencies. The Commission also assessed the applicant's efforts to negotiate with the employees' representatives to reach a new agreement. The Commission concluded that the significant changes in circumstances were indeed evident and that the existing agreement was no longer suitable. Furthermore, the Commission found that terminating the agreement was in the best interests of the employees, as it would allow for more adaptable and responsive employment terms that align with the current commercial realities.

The Fair Work Commission decided to grant the application for termination of the existing enterprise agreement. This decision paves the way for the parties to negotiate a new agreement that better reflects the current commercial environment and operational requirements. The Commission's decision emphasised the need for flexibility and adaptability in enterprise agreements to ensure they remain relevant and beneficial to both employers and employees in an ever-changing business landscape.

Downer EDI Engineering Electrical Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established