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
(AG2016/362)

DOWNER EDI ENGINEERING CEMENT AUSTRALIA FISHERMANS LANDING CEMENT MILL NO.2 WORKPLACE AGREEMENT 2007

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

Application for termination of the Downer EDI Engineering Cement Australia Fishermans Landing Cement Mill No.2 Workplace Agreement 2007.

[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 Cement Australia Fishermans Landing Cement Mill No.2 Workplace Agreement 2007 (“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, the applicant, sought the termination of the Downer EDI Engineering Cement Australia Fishermans Landing Cement Mill No.2 Workplace Agreement 2007 in the Fair Work Commission. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The crux of the dispute centred on the application's compliance with procedural and substantive requirements for terminating an enterprise agreement.

The central legal issues involved whether the application met the procedural prerequisites outlined in section 240-5 of the Fair Work Act 2009, and whether the termination was justified under the substantive criteria of section 240-3 of the same Act. Specifically, the court had to determine if the applicant had provided the requisite 28 days' notice of the application and if there were sufficient grounds to terminate the agreement.

The Fair Work Commission ruled that the application did not comply with the procedural requirement of providing 28 days' notice, thereby deeming it invalid. The Commission further found that even if the procedural issue were overlooked, the application did not satisfy the substantive criteria for termination. The Commission concluded that the applicant had failed to demonstrate that the termination of the agreement was necessary to enable the business to operate efficiently, effectively, and economically.

Consequently, the Commission dismissed the application for termination of the enterprise agreement. The respondent was entitled to costs associated with the proceedings.

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