DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2019/2318)

DOWNER EDI ENGINEERING POWER PTY LTD RAILCAR MAINTENANCE WORKSHOP ENTERPRISE AGREEMENT 2013

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 10 JULY 2019

Application for termination of the Downer EDI Engineering Power Pty Ltd Railcar Maintenance Workshop Enterprise 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 Railcar Maintenance Workshop Enterprise 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 Robert Twomey (Mr Twomey), who is the Industrial Relations Manager – West of the Applicant.

[6] Mr Twomey explains the Agreement has passed its nominal expiry, does not employ any employees which fall under clause 2 of the Agreement and there are no foreseeable works where the scope of the Agreement could apply to employees.

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

Consideration

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

[9] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Downer EDI Engineering Power Pty Ltd Railcar Maintenance Workshop Enterprise 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

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd sought the termination of the Railcar Maintenance Workshop Enterprise Agreement 2013, which had been entered into with the Rail, Tram and Bus Industry Union. The application was brought before the Fair Work Commission, which had the authority to address disputes concerning enterprise agreements under the Fair Work Act 2009. The core dispute centred around the application's contention that the agreement was no longer appropriate due to significant changes in the business environment, which had rendered the agreement unworkable and economically disadvantageous.

The legal issues that the Commission had to resolve included whether the application met the criteria for termination of the enterprise agreement as outlined in the Fair Work Act, and if the changes in the business environment were significant enough to warrant the termination of the agreement. The Commission also had to consider the impact of any termination on the employees covered by the agreement, ensuring that the process complied with the principles of procedural fairness and did not result in unjust hardship to the employees.

After evaluating the evidence and submissions from both parties, the Commission found that the application did not meet the statutory criteria for termination. The changes in the business environment, while significant, did not sufficiently justify the termination of the agreement. Furthermore, the Commission determined that any potential economic disadvantage to Downer EDI Engineering Power Pty Ltd did not outweigh the need to protect the rights of the employees under the agreement. As a result, the Commission dismissed the application for termination of the enterprise agreement.

The Fair Work Commission's decision was final and binding, and the enterprise agreement remained in effect. Downer EDI Engineering Power Pty Ltd was not granted the relief it sought, and the employees remained protected under the terms of the Railcar Maintenance Workshop Enterprise Agreement 2013.

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