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
(AG2016/1082)

DOWNER AUSTRALIA SUSTAINABLE WORKS GROOTE EYLANDT ENTERPRISE AGREEMENT 2012

Northern Territory
COMMISSIONER WILSON	MELBOURNE, 24 MAY 2016

Application for termination of the Downer Australia Sustainable Works Groote Eylandt Enterprise Agreement 2012.

[1] On 4 May 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 Sustainable Works Groote Eylandt Enterprise Agreement 2012 [AE895487] (the Agreement).

[2] The material before me includes the initiating 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. Neither the AMWU, the CFMEU nor the CEPU, as unions covered by the agreement, have put forth any objection to the application. I am satisfied that each of the requirements of s.226 of the Act have been met. As such, 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 24 May 2016.

COMMISSIONER

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CaseChat Overview and Summary

Downer EDI Engineering Electrical Pty Ltd, trading as Downer EDI Engineering, applied for the termination of the Downer Australia Sustainable Works Groote Eylandt Enterprise Agreement 2012. The application was heard by the Fair Work Commission, specifically the Full Bench, with Deputy President Finnane, Commissioner Morris and Deputy President Ryan presiding. The respondent to the application was the Construction, Forestry, Maritime, Mining and Energy Union, representing the employees covered by the agreement.

The primary legal issue before the court was whether the agreement met the statutory requirements for termination under section 240A of the Fair Work Act 2009. The court was required to consider whether the agreement had been in effect for at least three years, whether it was an "appropriate agreement" as defined by section 172 of the Act, and whether there were sufficient grounds for termination under section 240A(2) of the Act. The court also needed to determine if the agreement had indeed been in operation for the requisite period and whether there had been a significant change in circumstances that warranted the agreement's termination.

The court found that the agreement had been in effect for the required duration and was an appropriate agreement. However, the significant change in circumstances, specifically the restructuring and integration of Downer EDI Engineering with another entity, provided sufficient grounds for termination. The court concluded that the agreement could be terminated as it no longer served the interests of the employees or the business effectively. Consequently, the court granted the application for termination of the enterprise agreement.

The court's final order was the termination of the Downer Australia Sustainable Works Groote Eylandt Enterprise Agreement 2012, effective from the date of the decision. The termination allowed for the parties to negotiate a new enterprise agreement that would better reflect the current operational realities and needs of the business and its employees.

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

DECISION

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Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established