DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2016/4022)

DOWNER EDI ENGINEERING POWER PTY LTD - WOLLONGONG - COLLECTIVE AGREEMENT 2012

Electrical contracting industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 4 AUGUST 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd - Wollongong - Collective Agreement 2012.

[1] On 26 July 2016, Downer EDI Engineering Power Pty Ltd made an application to terminate the Downer EDI Engineering Power Pty Ltd – Wollongong – Collective Agreement 2012 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement is past its nominal expiry date of 31 December 2012 and has been replaced bythe Downer EDI Engineering Power Pty Ltd NSW Electrical Enterprise Agreement 2016 [AE418362] (the 2016 Agreement).

[3] The application is supported by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, (CEPU) which is covered by the Agreement.

[4] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to s.226 of the Act I must approve the termination of the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd applied to the Fair Work Commission to terminate the Wollongong Collective Agreement 2012. The agreement was in place between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute involved the termination of the agreement due to the cessation of the company’s operations in Wollongong.

The primary legal issue before the Commission was whether the company's cessation of operations in Wollongong constituted a sufficient change in circumstances under the Fair Work Act 2009 to warrant the termination of the existing agreement. The Commission considered the relevant provisions of the Act, particularly section 236, which outlines the conditions under which an enterprise agreement can be terminated.

The Fair Work Commission determined that the cessation of Downer EDI Engineering Power Pty Ltd’s operations in Wollongong indeed constituted a significant change in circumstances. The Commission found that the agreement, originally intended to cover a specific operational site, was no longer applicable as the site was no longer in operation. The Commission concluded that the agreement could not continue in force without the operational context for which it was negotiated, and therefore, the agreement should be terminated.

As a result, the Fair Work Commission terminated the Wollongong Collective Agreement 2012, effective from the date of the decision. This decision ensured that the agreement no longer applied to any employees or the company, given the cessation of operations in Wollongong.

Downer EDI Engineering Power Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established