Downer EDI Engineering Power Pty Ltd

[2019] FWCA 5063

[2019] FWCA 5063

FAIR WORK COMMISSION

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.

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