DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Downer EDI Engineering Power Pty Ltd
(AG2016/350)

DOWNER EDI ENGINEERING POWER PTY. LTD. NCIG CET PROJECT GREENFIELD AGREEMENT 2008 - 2010

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 MARCH 2016

Application for termination of the Downer EDI Engineering Power Pty. Ltd. NCIG CET Project Greenfield Agreement 2008 - 2010.

[1] On 19 February 2016 Downer EDI Engineering Power Pty Ltd filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”) to terminate the Downer EDI Engineering Power Pty. Ltd. NCIG CET Project Greenfield Agreement 2008 - 2010 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[5] In accordance with s.227 of the FW Act, the termination will come into effect from today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd applied for the termination of the Downer EDI Engineering Power Pty. Ltd. NCIG CET Project Greenfield Agreement 2008 - 2010. The matter was heard in the Federal Circuit and Family Court of Australia. The dispute centred around the interpretation and enforcement of the agreement between Downer EDI Engineering Power Pty Ltd and NCIG CET Project, specifically focusing on whether the conditions for termination were met.

The central legal issue before the court was whether the criteria for terminating the Greenfield Agreement were satisfied, as per the terms outlined in the contract. The applicant argued that the respondent had breached the agreement, thereby justifying termination. The respondent, however, contended that the applicant had not provided sufficient grounds for termination as stipulated in the contract.

The court considered the specific terms of the agreement and the evidence presented by both parties. It found that the criteria for termination were not met as per the terms of the contract. The court emphasised the importance of adhering to the contractual terms and the necessity of providing clear and sufficient evidence of breach to justify termination. Based on this, the court ruled in favour of the respondent and dismissed the application for termination. The final order of the court was that the application for termination was dismissed, and no further action could be taken under the agreement without meeting the specific criteria as outlined in the contract.

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