Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering

[2016] FWC 5276

[2016] FWC 5276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering
(AG2016/361)

DOWNER EDI ENGINEERING ELECTRICAL PTY LTD ALCAN GOVE EXPANSION PROJECT WORKPLACE AGREEMENT 2007-2008

Northern Territory
COMMISSIONER WILSON	MELBOURNE, 9 AUGUST 2016

Application for termination of the Downer EDI Engineering Electrical Pty Ltd Alcan Gove Expansion Project Workplace Agreement 2007-2008; Agreement ceased to apply at operative date of replacement agreement; application to no purpose; application refused.

[1] On 19 February 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 EDI Engineering Electrical Pty Ltd Alcan Gove Expansion Project Workplace Agreement 2007-2008 [AC311859] (the 2007-2008 Agreement). Due to an administrative error in the Commission registry, the matter wasn’t allocated to my Chambers until 19 July 2016, causing a delay in the determination of the application.

[2] The application is brought under s.225 of the Act, which provides as follows;

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

[3] Section 226 outlines the circumstances upon which I must be satisfied that it is appropriate to terminate an enterprise agreement. That section provides;

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.

[4] The material before me includes the initiating application, and an accompanying statutory declaration filed by the Applicant in support of the application. The Applicant provided further particulars on 27 July 2016, after a request by me to do so, which I have also taken into account.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is the union covered by the 2007-2008 Agreement. The views of the union were sought, in light of s.226(b)(i) of the Act, however none were forthcoming.

[6] The statutory declaration accompanying the application provides, in response to a question surrounding the potential for the termination of the 2007-2008 Agreement to be contrary to the public interest, that “[i]t is in the public interest to terminate the agreement, as it has passed its nominal expiry date, was replaced and the construction work covered by the agreement is complete”. The statutory declaration provides that there are currently no employees covered by the 2007-2008 Agreement.

[7] On 26 July 2016, my Chambers issued correspondence to the Applicant seeking further particulars as to the reference in the statutory declaration that the 2007-2008 Agreement had been “replaced”, and drew the Applicant’s attention to s.58(2)(e) of the Act, with a request for advice on the applicability of that section.

[8] Relevantly, s.58 of the Act deals with the interaction between one or more enterprise agreements. Section 58 provides as follows;

58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1) Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2) If:

(a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c) subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d) if the earlier agreement has not passed its nominal expiry date:

(i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e) if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

[9] The response provided by the Applicant on 27 July 2016 confirmed, amongst other matters, that;

• The nominal expiry date of the 2007-2008 Agreement was 31 December 2008;



• The Agreement was replaced by the Downer EDI Engineering Electrical Pty Ltd Rio Tinto Alcan Gove Workplace Agreement 2008-2011 [AC320043] (the 2008-2011 Agreement);



• The operative date of the 2008-2011 Agreement was 31 July 2009; and



• On the operative date of the 2008-2011 Agreement, the 2007-2008 Agreement ceased to apply to employees consistent with section 58(2)(e) of the Act.

[10] After consideration of the all the material on the file, I am satisfied that the 2007-2008 Agreement has ceased to apply by reason of s.58(2)(e) of the Act. The 2007-2008 Agreement has ceased to apply, and can never so apply again. I am satisfied there is, therefore, no utility in the application to terminate the 2007-2008 Agreement pursuant to s.225 of the Act. The application is dismissed pursuant to s.597(c) of the Act, as the application has no reasonable prospects of success.

COMMISSIONER

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<Price code A, AC311859  PR583625>