Downer EDI Engineering Power Pty Ltd

[2024] FWCA 1970

[2024] FWCA 1970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd

(AG2024/1712)

DOWNER EDI ENGINEERING POWER PTY LTD ALCOA OPERATIONS ENTERPRISE AGREEMENT 2019

Miscellaneous
DEPUTY PRESIDENT BEAUMONT	PERTH, 30 MAY 2024

Application for termination of the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019

1. This decision concerns an application made by Downer EDI Engineering Power Pty Ltd (the Applicant) on 21 May 2024 for the termination of the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019[1] (the Agreement) made under s 225 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement passed its nominal expiry date on 17 October 2023.

1. Section 225 of the Act provides that an employer covered by an enterprise agreement can apply to the Commission for the termination of an agreement if the agreement has passed its nominal expiry date. Evidently, given the nominal expiry date of the Agreement and that the Applicant is the employer covered by the Agreement, the Applicant has standing.

1. Thereafter, the Commission is obliged to terminate the enterprise agreement if satisfied that the subsections of s 226 have been met. 

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 under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

1. In support of its application, the Applicant has provided a declaration made by Mr Mark Wakelin, Manager Industrial Relations of the Applicant. 

1. Mr Wakelin explained that at the time of the application for the termination of the Agreement, the Applicant had no dedicated commercial contract with its client ‘Alcoa’ and there were no employees employed under the Agreement.[2]  Mr Wakelin clarified that the Applicant’s commercial contract with ‘Alcoa’, the sole client to whom the Agreement concerned, was ceased by ‘Alcoa’ in 2019. 

1. The Applicant did not object to the Commission determining the application on the papers, and as such I considered that to be the appropriate course.

1. The views of the Applicant have been considered and I accept the evidence of Mr Wakelin, which is set out in the declaration.  I am satisfied that there are no employees covered by the Agreement and that the Applicant does not intend to employ any future employees who would be covered by the Agreement. 

1. There is no evidence before me suggestive that there is bargaining for a new enterprise agreement.  It follows that the termination of the Agreement would not have any detrimental impact or result in a shift in bargaining power, in relation to enterprise bargaining, for the Applicant or other relevant party.  Further, there does not appear to be any other relevant matter that warrants consideration. 

1. On 22 May 2024, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU), and the Construction, Forestry, Maritime, and Energy Union (the CFMEU) were invited to provide their views on the application.  The AMWU took no issue with the application, and no views were forthcoming from the CFMEU and the CEPU. 

1. I am satisfied that the Agreement does not, and is not likely to, cover any employees, and that it is appropriate in all the circumstances to terminate the Agreement.

1. Accordingly, the Agreement is terminated and pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision. An Order[3] to this effect is issued concurrently with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE505556  PR775492>

[1] [2019] FWCA 6818.

[2] Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date [2.1]. 

[3] PR775493.

Printed by authority of the Commonwealth Government Printer

<AE505556  PR775492>