Downer EDI Engineering Power Pty Ltd Summary

[2016] FWCA 1348

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 T/A Downer Engineering

(AG2016/353)

DOWNER ENGINEERING POWER PTY LIMITED BP REFINERY

(BULWER ISLAND) COLLECTIVE AGREEMENT 2006

Building, metal and civil construction industries

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 9 MARCH 2016

Application for termination of the Downer Engineering Power Pty Limited BP Refinery

(Bulwer Island) Collective Agreement 2006.

[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 Engineering Power Pty

Limited BP Refinery (Bulwer Island) Collective Agreement 2006 (“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.
[2016] FWCA 1348

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd, trading as Downer Engineering, filed an application seeking the termination of the Downer Engineering Power Pty Limited BP Refinery (Bulwer Island) Collective Agreement 2006. The matter was heard by the Senior Deputy President, Richards, in Brisbane on 9 March 2016. The application was brought under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, which pertains to the termination of collective agreement-based transitional instruments that have exceeded their nominal expiry date.

The primary legal issue before the court was whether the application for termination of the collective agreement was in the public interest and appropriate under the circumstances. The court had to consider the provisions of section 226 of the Fair Work Act 2009, which outlines the criteria for determining the appropriateness of terminating a collective agreement. Additionally, the court had to ascertain whether the agreement in question qualified as a collective agreement-based transitional instrument and whether it had indeed surpassed its nominal expiry date.

In evaluating the application, the court found that the termination of the collective agreement was not contrary to the public interest. Furthermore, considering all relevant circumstances, the court determined that it was appropriate to terminate the agreement. The court's decision was based on the material presented, and it concluded that the requirements of section 226 of the Fair Work Act were satisfied. As per section 227 of the Fair Work Act, the court ordered that the termination of the agreement would take effect from the date of the decision.

This decision underscores the legal framework governing the termination of collective agreements and the importance of evaluating each application on its merits to ensure compliance with statutory requirements.

Downer EDI Engineering Power Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established