Downer EDI Engineering Power Pty Ltd Summary

[2016] FWCA 1342

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

(AG2016/364)

DOWNER EDI ENGINEERING JACKETED PIPING UNITS (JPU'S)

FABRICATION WORKPLACE AGREEMENT 2007 - 2010

Building, metal and civil construction industries

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 9 MARCH 2016

Application for termination of the Downer EDI Engineering Jacketed Piping Units (JPU's)

Fabrication Workplace Agreement 2007 - 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

Jacketed Piping Units (JPU's) Fabrication Workplace Agreement 2007 - 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.
[2016] FWCA 1342

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Engineering Power Pty Ltd, sought the termination of the Downer EDI Engineering Jacketed Piping Units (JPU's) Fabrication Workplace Agreement 2007-2010, a collective agreement-based transitional instrument, under Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The agreement, which was beyond its nominal expiry date, was the subject of an application filed on 19 February 2016. The court was required to determine whether the termination of the agreement was in the public interest and appropriate, taking into account all the circumstances.

The legal issues addressed by the court were whether the termination of the agreement was contrary to the public interest and whether it was appropriate to terminate the agreement given the circumstances. The court applied section 226 of the Fair Work Act 2009, which mandates that the termination of a collective agreement-based transitional instrument is not contrary to the public interest and is appropriate if certain conditions are met. The court considered the material presented to it and concluded that the termination of the agreement was neither contrary to the public interest nor inappropriate under the circumstances.

Based on the material before the court, it was satisfied that the termination of the agreement was not contrary to the public interest and was appropriate. The court found that the applicant had met the requirements set out in section 226 of the Fair Work Act 2009. Consequently, the court ordered the termination of the agreement in accordance with section 227 of the Act, effective from the date of the decision.

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