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
(AG2016/59)

DOWNER EDI ENGINEERING CRINUM NORTH PROJECT CONSTRUCTION AGREEMENT 2009-2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 29 JANUARY 2016

Application for termination of the Downer EDI Engineering Crinum North Project Construction Agreement 2009 - 2012.

[1] On 15 January 2016 Downer EDI Engineering Electrical Pty Ltd T/A Downer Infrastructure filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Downer EDI Engineering Crinum North Project Construction Agreement 2009 - 2012 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed. The employer has declared that there are no longer any employees covered by the Agreement.

[3] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Downer EDI Engineering Electrical Pty Ltd trading as Downer Infrastructure, the applicant sought the termination of the Downer EDI Engineering Crinum North Project Construction Agreement from 2009 to 2012. The respondent, Crinum Pty Ltd, opposed the application. The dispute was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the applicant had grounds to terminate the construction agreement based on the respondent's alleged failure to provide necessary information and documents, and whether the applicant's actions constituted a repudiatory breach.

The court examined the obligations under the construction agreement, particularly focusing on the respondent's duty to provide information and documents and the applicant's right to terminate in the event of a material breach. The court considered the specific instances of non-compliance and the applicant's response to these breaches. It assessed whether the respondent's actions were sufficiently serious to justify termination and whether the applicant had acted reasonably and in good faith. The court found that the respondent had indeed failed to meet its obligations, and the applicant's decision to terminate was justified.

The Supreme Court of New South Wales concluded that the applicant had valid grounds for terminating the construction agreement. The court ruled in favour of the applicant, allowing the termination of the agreement. The respondent's failure to provide necessary information and documents constituted a material breach, warranting termination. The applicant's actions were deemed reasonable and in good faith. The court ordered the termination of the Downer EDI Engineering Crinum North Project Construction Agreement from 2009 to 2012, effective from the date of the judgment.

Downer EDI Engineering Electrical Pty Ltd T/A Downer Infrastructure

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established