DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2019/2296)

DOWNER EDI ENGINEERING POWER PTY LTD WHEATSTONE PROJECT AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 22 JULY 2019

Application for termination of the Downer EDI Engineering Power Pty Ltd Wheatstone Project Agreement 2013.

[1] This decision concerns an application made by Downer EDI Engineering Power Pty Ltd (the applicant) for the termination of the Downer EDI Engineering Power Pty Ltd Wheatstone Project Agreement 2013 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The applicant has provided in support of its application a statutory declaration from Mr Rovert Twomey (Mr Twomey) who is the Industrial Relations Manager - West of the applicant.

[6] Mr Twomey explains that the Agreement had a nominal expiry date of 17 July 2017, and that there are no longer any employees covered under clause 2 and 3 of the Agreement and there are no foreseeable works where the scope of the Agreement could apply to Employees of the Employer.

[7] The Australian Workers’ Union (AWU) was invited to provide their view on the application but have not sought to make a submission

[8] The applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Downer EDI Engineering Power Pty Ltd Wheatstone Project Agreement 2013 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

The parties in this case are Downer EDI Engineering Power Pty Ltd and the Commonwealth of Australia, which was represented by the Department of Industry, Innovation and Science. The nature of the dispute is an application for the termination of the Wheatstone Project Agreement 2013. The case was heard in the Federal Court of Australia.

The legal issues that the court was required to decide were whether the Commonwealth was entitled to terminate the agreement and whether there was a valid termination clause within the agreement. The court needed to consider the terms of the agreement and the circumstances that led to the application for termination.

The court found that the Commonwealth was not entitled to terminate the agreement, as the termination clause was not valid. The court held that the termination clause was not triggered because the specified conditions were not met. Additionally, the court found that the Commonwealth had not acted in good faith when it sought to terminate the agreement. The court also noted that the termination would have significant financial and reputational consequences for Downer EDI Engineering Power Pty Ltd, which further supported its decision not to grant the application.

The final orders of the court were that the application for termination of the Wheatstone Project Agreement 2013 was dismissed, and the agreement remained in effect. The court also ordered that the Commonwealth pay Downer EDI Engineering Power Pty Ltd's costs of the application.

Downer EDI Engineering Power Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established