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
(AG2016/352)

DOWNER ENGINEERING POWER PTY LIMITED (MT ISA AREA) WORKPLACE AGREEMENT 2007 - 2009

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

Application for termination of the Downer Engineering Power Pty Limited (Mt Isa Area) Workplace Agreement 2007 - 2009.

[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 (Mt Isa Area) Workplace Agreement 2007 - 2009 (“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 was the subject of an application for the termination of the Downer Engineering Power Pty Limited (Mt Isa Area) Workplace Agreement 2007 - 2009. The applicant sought to terminate the agreement on the basis that it was no longer appropriate due to significant changes in the workplace environment and the parties' inability to reach a new agreement. The Fair Work Commission was the tribunal hearing the application.

The primary legal issue before the Commission was whether the changes in the workplace environment and the inability to reach a new agreement constituted sufficient grounds for the termination of the existing workplace agreement. The Commission had to consider the relevant provisions of the Fair Work Act 2009 and the principles of good faith bargaining and the promotion of workplace harmony. The applicant argued that the changes necessitated a new agreement, while the respondent contended that the existing agreement remained suitable and that termination would disrupt workplace harmony.

The Commission found that the changes in the workplace environment were significant and justified a review of the existing agreement. However, the applicant had not demonstrated that the existing agreement was no longer appropriate or that the parties were unable to reach a new agreement through good faith bargaining. The Commission emphasised the importance of maintaining workplace harmony and the parties' obligation to engage in good faith negotiations. Consequently, the application for termination was dismissed. The Commission ordered that the existing workplace agreement remain in force and that the parties continue to engage in good faith negotiations to reach a new agreement.

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