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
(AG2016/366)

DOWNER EDI ENGINEERING CALTEX REFINERY (LYTTON) RPIP PROJECTS 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 Caltex Refinery (Lytton) RPIP Projects 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 Caltex Refinery (Lytton) RPIP Projects 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.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd, a company involved in the engineering and construction sector, applied to the Fair Work Commission for the termination of the Downer EDI Engineering Caltex Refinery (Lytton) RPIP Projects Workplace Agreement 2007–2010. The application was brought against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) which represents the employees involved. The primary dispute centred on the applicability of the Australian Building and Construction Commission (ABCC) Act in relation to the termination of the workplace agreement, with the company asserting that changes in the ABCC Act had rendered the agreement unlawful.

The key legal issues before the Court were whether the changes introduced by the ABCC Act necessitated the termination of the workplace agreement and if the agreement was, in fact, unlawful under the new legislative framework. The Court had to consider the implications of the statutory changes on existing agreements and the rights and obligations of the parties under the agreement. Additionally, the Court needed to determine whether the company's application was properly made and if there were any other factors that should be taken into account in reaching its decision.

The Court found that the changes introduced by the ABCC Act did indeed render the existing workplace agreement unlawful. The Court concluded that the agreement could not continue in its current form without breaching the new legislative requirements. As such, the Court granted the company's application for the termination of the agreement. The Court noted that the changes in the law had a significant impact on existing agreements and that the parties would need to renegotiate their terms to comply with the new statutory requirements. The Court's decision was based on a detailed analysis of the changes in the law and their effect on the existing agreement, as well as a consideration of the parties' rights and obligations under the agreement. The Court's decision provides important guidance for employers and employees in the construction industry, highlighting the need for careful review and negotiation of workplace agreements in light of legislative changes.

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