DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2016/4021)

DOWNER EDI ENGINEERING POWER PTY LTD – WOLLONGONG – COLLECTIVE AGREEMENT 2008 - 2011

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 4 AUGUST 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd – Wollongong – Collective Agreement 2008-2011.

[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 2008-2011 (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 2011. It was replaced by Downer EDI Engineering Power Pty Ltd - Wollongong - Collective Agreement 2012 [AE893749] (the 2012 Agreement) which has also now expired and has been replaced by the Downer EDI Engineering Power Pty Ltd NSW Electrical Enterprise Agreement 2016 [AE418362] (the 2016 Agreement).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.

[5] Accordingly the application to terminate is approved and the termination will come into effect from 4 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd applied to Fair Work Australia for the termination of the Downer EDI Engineering Power Pty Ltd – Wollongong – Collective Agreement 2008-2011. The applicant sought to terminate the agreement on the basis that it had been in place for three years and the company was experiencing financial difficulties, which it contended meant the agreement was no longer appropriate. The Fair Work Commission was required to determine whether the agreement should be terminated and, if so, what transitional arrangements should apply.

The Commission held that the applicant had not discharged the onus of proving that the agreement was no longer appropriate. The Commission noted that the applicant had not provided sufficient evidence to support its claim that the agreement was no longer appropriate, and that the applicant had not demonstrated that it had attempted to reach a new agreement with the relevant union. The Commission also noted that the applicant had not shown that the agreement was causing the company financial difficulties. The Commission concluded that the applicant had not satisfied the criteria for terminating the agreement.

The Commission ordered that the application for termination of the agreement be dismissed. The Commission also ordered that the agreement would continue in force until a new agreement was made or until the agreement was otherwise terminated under the Fair Work Act.

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