Downer EDI Engineering Power Pty Ltd

[2025] FWCA 1318

[2025] FWCA 1318

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 Power Pty Ltd

(AG2025/1029)

DOWNER EDI ENGINEERING POWER PTY LTD SOUTH WEST MAINTENANCE SERVICES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries

DEPUTY PRESIDENT BINET PERTH, 7 MAY 2025

Application for termination of the Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019

1. On 10 April 2025, Downer EDI Engineering Power Pty Ltd (Downer) made an application for the termination of the Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019 (Agreement)[1] pursuant to s 225 of the Fair Work Act 2009 (Cth) (FW Act).

1. The Agreement applies to Downer and employees of Downer employed in the classifications of mechanical works and multi discipline works in the South West and Great Southern regions within Western Australia. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Post, Plumbing and Allied Services Union of Australia (CEPU) objected to the approval of the Agreement but did not apply to be covered by the Agreement.[2]

1. The nominal expiry date of the Agreement is 3 December 2023.

1. Sections 225 and 226 of the FW Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide that:

“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      Terminating an enterprise agreement after its nominal expiry date

(1)    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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)   the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)   all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)     However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)    This subsection covers a termination of the employment of an employee:

(a)   at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)   because of the insolvency or bankruptcy of the employer.

(3)    In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)   the employees (unless there are no employees covered by the agreement);

(b)   each employer;

(c)   each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)    In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)   whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)   whether bargaining for the proposed enterprise agreement is occurring; and

(c)   whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)    In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The Application is made by Downer in its capacity as an employer covered by the Agreement. Downer have standing to make the Application.

1. The Application was accompanied by a F24C declaration completed by Mr Mark Wakelin, the Manager Industrial Relations (Mr Wakelin). Mr Wakelin states that the Agreement has not applied to any employees for some time because Downer has not employed any employees to perform work in the classifications covered by the Agreement for more than 12 months. 

1. Based on the declaration of Mr Wakelin, I am satisfied that the agreement does not, and is not likely to cover any employees and that the process for bargaining for a proposed new agreement has not commenced.

1. Downer support the termination. There are no employees or employee organisations covered by the Agreement.

1. I am satisfied that none of the criteria in s 226(4) apply and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s 226(5)).

1. I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.

1. The termination will operate from the date of this decision. An order to this effect will be issued with this decision.[3]

DEPUTY PRESIDENT

[1] AE506176; PR714472.

[2] Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019 [2019] FWCA 7930 at [41]

[3] PR786873

Printed by authority of the Commonwealth Government Printer

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