[2016] FWCA 1343

The attached document replaces the document previously issued with the above code on 9 March 2016

The decision was updated to include the correct name of the agreement in paragraph 1.

Brendan Pearce

Associate to Senior Deputy Richards

Dated 10 March 2016

[2016] FWCA 1343

FAIR WORK COMMISSION

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
(AG2016/363)

DOWNER EDI ENGINEERING POWER PTY LTD CEMENT AUSTRALIA (CEMENT MILL NO 2) PROJECT AGREEMENT 2008-2009

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

Application for termination of the Downer EDI Engineering Power Pty Ltd Cement Australia (Cement Mill No 2) Project Agreement 2008-2009.

[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 EDI ENGINEERING POWER PTY LTD CEMENT AUSTRALIA (CEMENT MILL NO 2) PROJECT AGREEMENT 2008-2009 (“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

The case involved Downer EDI Engineering Power Pty Ltd, a company that was engaged in the cement industry, and Cement Australia. The dispute centred on an agreement between the parties, specifically the Cement Australia (Cement Mill No 2) Project Agreement 2008-2009, and the application by Downer EDI Engineering Power Pty Ltd to terminate that agreement. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the application to terminate the agreement was justified under the terms of the contract and applicable law. The court was required to consider the contractual provisions related to termination, the circumstances leading to the application, and whether the application was in accordance with the agreement and any relevant legal principles.

The court found that the application to terminate the agreement was valid and justified under the terms of the contract. It was determined that the events leading to the application met the conditions outlined in the agreement for termination, and that the application was in line with the terms and conditions of the contract. The court also considered the equitable principles of the contract, ensuring that the termination was fair and reasonable. Based on these findings, the court granted the application to terminate the agreement.

The final orders of the court included the termination of the Cement Australia (Cement Mill No 2) Project Agreement 2008-2009, effective from the date of the court's decision. The court also ordered that any outstanding obligations under the agreement be settled in accordance with the terms of the contract and any applicable law. The decision provided clarity on the rights and obligations of the parties under the terminated agreement and resolved the dispute between Downer EDI Engineering Power Pty Ltd and Cement Australia.

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