Downer EDI Engineering Electrical Pty Ltd T/A Downer Infrastructure

[2016] FWCA 6403

[2016] FWCA 6403

The attached document replaces the document previously issued with the above code on 13 September 2016

The document reference has been corrected.

Nahum Moreau

Associate to Commissioner Hunt

Dated 20 September 2016

[2016] FWCA 6403

FAIR WORK COMMISSION

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 Infrastructure
(AG2016/5517)

DOWNER INFRASTRUCTURE HAY POINT EXPANSION 3 PROJECT UNION GREENFIELDS AGREEMENT

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 13 SEPTEMBER 2016

Application for termination of the Downer Infrastructure Hay Point Expansion 3 Project Union Greenfields Agreement AE403836.

[1] On 6 September 2016, Downer EDI Engineering Electrical Pty Ltd applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Downer Infrastructure Hay Point Expansion 3 Project Union Greenfields Agreement (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was accompanied by a statutory declaration in support of the termination, declared by Laura Gordon, Industrial Relations Manager.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) are employee organisations (the Unions) which are covered by the Agreement.

[4] On 7 September 2016, my Associate wrote to each of the Unions to seek their views in relation to the application by no later than 12:00pm on 12 September 2016.

[5] In correspondence to my Chambers on 9 September 2016, the AMWU advised that they do not object to the termination of the Agreement on the basis that there are no employees covered by it.

[6] The ETU and CFMEU did not provide their views in relation to the application, despite being afforded an opportunity to do so.

The legislation

[7] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss. 225, 226 and 227, the terms of which are 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.”

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[8] The leading authority with respect to applications made pursuant to s.225 is a decision of a Full Bench of the Commission in Aurizon 1. In that decision the Full Bench said:

The legislative scheme therefore enables and facilitates good faith bargaining for an enterprise agreement. It also facilitates the making of enterprise agreements but does not mandate that result. Once an enterprise agreement is made and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; or a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act; or both may occur.

[9] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a) and having regarding to the decision in Aurizon, I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[10] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[11] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[12] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[13] The termination will take effect from 13 September 2016.

COMMISSIONER

 1   Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 at [126]

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