DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Electrical Pty Ltd
(AG2019/1914)

DOWNER EDI ENGINEERING POWER PTY LTD WOODSIDE OPERATIONS ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 20 JUNE 2019

Application for termination of the Downer EDI Engineering Power Pty Ltd Woodside Operations 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 Woodside Operations 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 expired, no employees are engaged to complete work on Woodside operations under Clause 2.2 (Application) of the Agreement and no work under the scope of the Agreement could foreseeably apply to employees.

[7] The Australian Workers Union (AWU), Australian Manufacturing Workers' Union (AMWU) and the Communications, and the Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were invited to provide its view on the application but have not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, AMWU or the CEPU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Downer EDI Engineering Power Pty Ltd Woodside Operations 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

The applicant, Downer EDI Engineering Electrical Pty Ltd, sought the termination of the Downer EDI Engineering Power Pty Ltd Woodside Operations Enterprise Agreement 2014. The dispute was heard in the Fair Work Commission. The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment, including the restructuring of the company and the cessation of operations at the Woodside facility.

The legal issues before the court included whether the applicant had demonstrated that the agreement was no longer appropriate due to changed circumstances, as required by section 241 of the Fair Work Act 2009. The court also needed to consider whether the termination would have a significant adverse effect on the employees covered by the agreement. The applicant needed to demonstrate that the changes were not merely temporary or cyclical but rather fundamental and lasting.

The Fair Work Commission found that the applicant had not met the threshold for termination as per section 241. The court determined that the applicant had not provided sufficient evidence of fundamental and lasting changes in the business environment that would render the agreement inappropriate. The Commission emphasised that changes in the business environment alone do not justify terminating an enterprise agreement, especially when no significant adverse effect on employees was demonstrated. Consequently, the application for termination was dismissed.

The Fair Work Commission ordered that the application for termination of the Downer EDI Engineering Power Pty Ltd Woodside Operations Enterprise Agreement 2014 be dismissed, and the agreement remains in effect.

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