Downer EDI Engineering Power Pty Ltd

[2016] FWCA 2404

[2016] FWCA 2404

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering

(AG2016/756)

DOWNER EDI ENGINEERING POWER PTY LTD BHPB IRON ORE

GROWTH PROJECTS STAGE 1 CEPU GREENFIELDS AGREEMENT

Electrical contracting industry

COMMISSIONER WILLIAMS PERTH, 15 APRIL 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore

Growth Projects Stage 1 CEPU Greenfields Agreement.

[1]        This decision concerns an application made by Downer EDI Engineering Power Pty

Ltd T/A Downer EDI Engineering (the applicant) for the termination of the Downer EDI

Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 CEPU Greenfields

Agreement (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

[2016] FWCA 2404

(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

Ms Laura Gordon (Ms Gordon) who is the Industrial Relations Manager of the applicant.

[6]        Ms Gordon explains that the Agreement had a nominal expiry date of 10 February

2016 and that the applicant no longer employs any person covered under the Agreement as the

construction work covered by the Agreement has been completed.

[7]        The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing

and Allied Services Union of Australia (CEPU) was invited to provide its view on the

application but has not sought to make a submission.

[8]        The applicant submits that in the circumstances terminating the Agreement would not

be contrary to the public interest.

Consideration

[9]        I am satisfied that termination of the Agreement is not contrary to the public interest.

[10]      Taking into account the views of the employer and accepting the applicant’s statement

that there are no employees covered by the Agreement, which has not been challenged by the

CEPU, I do consider in the circumstances here that it is appropriate to terminate the

Agreement.

[11]      Accordingly, the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth

Projects Stage 1 CEPU Greenfields Agreement 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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