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

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).

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]

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Downer EDI Engineering Power Pty Ltd [2025] FWCA 1318
Case: [2025] FWCA 1318
Decision Date: 7 MAY 2025

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd applied to the Fair Work Commission for the termination of the Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019, which had already passed its nominal expiry date. The agreement was applicable to Downer and its employees in the mechanical and multi-discipline works classifications within the South West and Great Southern regions of Western Australia. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Communications, Electrical, Electronic, Energy, Information, Post, Plumbing and Allied Services Union of Australia objected to the approval of the agreement but did not seek to be covered by it.

The legal issues before the Deputy President included whether the agreement could be terminated under the Fair Work Act, and if so, whether the criteria for such a termination had been satisfied. The key criteria for termination, as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, required the Deputy President to determine whether the continued operation of the agreement was unfair to employees, whether it covered any employees, or whether its continued operation posed a threat to the business viability of the employer, among other factors. Additionally, the Deputy President had to consider the views of the employees, employers, and employee organisations covered by the agreement, as well as any other relevant matters.

The Deputy President found that the agreement did not and was not likely to cover any employees, as Downer had not employed any staff in the relevant classifications for over 12 months. The Deputy President also concluded that none of the criteria under section 226(4) of the Fair Work Act applied, and there were no other relevant matters to consider. Given these findings, the Deputy President determined that it was appropriate to terminate the agreement in all the circumstances. The termination of the agreement would take effect from the date of the decision, and an order to this effect was issued.

This decision underscores the Fair Work Commission's role in balancing the interests of employers and employees in the termination of enterprise agreements, particularly when such agreements are no longer operational or relevant to the workforce.

Orders