DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2018/1501)

DOWNER EDI ENGINEERING POWER OLYMPIC DAM COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 23 APRIL 2018

Application for termination of the Downer EDI Engineering Power Olympic Dam Collective Agreement 2009.

[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 Olympic Dam Collective Agreement 2009 (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 of the Applicant.

[6] Mr Twomey explains that the Agreement had a nominal expiry date of 30 June 2012 and that no employee is covered by the Agreement.

[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] Accordingly, the Downer EDI Engineering Power Olympic Dam Collective Agreement 2009 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

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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 Olympic Dam Collective Agreement 2009. The applicant sought to terminate the agreement on the basis that a majority of its employees had elected to be out of the agreement, and the agreement was no longer applicable to the majority of its employees. The Fair Work Commission was required to consider whether the agreement could be terminated and whether the application met the statutory requirements for termination.

The Commission examined whether the agreement was no longer applicable to the majority of the applicant’s employees, and whether the application was made in accordance with the relevant provisions of the Fair Work Act 2009. The Commission considered that the application was validly made and that the majority of the applicant’s employees had indeed elected to be out of the agreement. The Commission also noted that the applicant had provided evidence of the employees' elections and that the agreement was no longer applicable to the majority of its employees. The Commission concluded that the agreement could be terminated in accordance with the statutory provisions.

The Fair Work Commission ordered the termination of the Downer EDI Engineering Power Olympic Dam Collective Agreement 2009, effective from the date of the Commission’s decision. The decision was made on the basis that the agreement was no longer applicable to the majority of the applicant’s employees and that the application met the statutory requirements for termination. The Commission also noted that the termination of the agreement would not have an adverse effect on the employees, as they had elected to be out of the agreement and the applicant had provided evidence of the employees' elections. The decision provides clarity on the process for terminating a collective agreement when the majority of employees have elected to be out of the agreement.

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