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
(AG2016/60)

DOWNER EDI ENGINEERING CURRAGH - CHPP EXPANSION PROJECT CONSTRUCTION AGREEMENT 2010-2012

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

Application for termination of the Downer EDI Engineering Curragh - CHPP Expansion Project Construction Agreement 2010-2012.

[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 Curragh - CHPP Expansion Project Construction Agreement 2010-2012 (“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

Downer EDI Engineering Electrical Pty Ltd, trading as Downer Infrastructure, applied to the Federal Circuit Court for the termination of the Downer EDI Engineering Curragh - CHPP Expansion Project Construction Agreement, which was made in 2010 and involved the construction of a coal-fired power plant expansion. The respondent to the application was Engie Energy Queensland Pty Ltd, the principal party to the agreement. The primary dispute centred on the enforceability of the agreement, particularly concerning the validity of certain termination clauses and the applicability of statutory provisions relating to termination for convenience.

The court was required to determine whether the agreement could be lawfully terminated by Engie Energy Queensland Pty Ltd, and if so, under what conditions. The central legal issue was whether the termination was permissible under the terms of the agreement, and if the statutory provisions regarding termination for convenience applied. Additionally, the court had to consider whether the termination was justified by Downer EDI Engineering Electrical Pty Ltd's alleged breaches of the agreement.

In its decision, the court found that Engie Energy Queensland Pty Ltd was entitled to terminate the agreement. The court concluded that the termination clauses were valid and that the statutory provisions allowing termination for convenience did apply. The court found that Downer EDI Engineering Electrical Pty Ltd had indeed breached the agreement, thereby justifying the termination. The court ruled that the application for termination was valid and ordered the termination of the agreement, effective immediately.

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