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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Downer EDI Engineering Power Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWCA 1970
Decision Date: 30 MAY 2024

CaseChat Overview and Summary

In the Fair Work Commission, Downer EDI Engineering Power Pty Ltd applied to terminate the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019. The application arose from a dispute regarding the enterprise's terms and conditions, which the applicant claimed had become obsolete due to changes in the business environment. The applicant sought to terminate the agreement to allow for renegotiation of terms that better reflect current operational realities.

The central legal issue was whether the changes in the business environment warranted a termination of the enterprise agreement. This required the court to consider the criteria for termination under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement had become "unworkable" or "obsolete" in light of the significant changes to the business environment since the agreement was made. Additionally, the court had to assess whether the changes were substantial enough to justify termination.

The court found that the changes in the business environment were significant and had indeed rendered the enterprise agreement unworkable. The changes included shifts in the operational landscape, which had not been anticipated when the agreement was made. The court concluded that the agreement was obsolete and therefore granted the application for termination. The decision emphasised the need for enterprise agreements to remain adaptable to changes in the business environment to ensure they remain fair and effective.

Orders