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
(AG2016/355)

DOWNER EDI ENGINEERING MARYBOROUGH WORKSHOP AGREEMENT 2008 - 2011

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

Application for termination of the Downer EDI Engineering Maryborough Workshop Agreement 2008 - 2011.

[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 Maryborough Workshop Agreement 2008 - 2011 (“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 (Downer) applied to the Federal Circuit and Family Court of Australia for an order terminating the Downer EDI Engineering Maryborough Workshop Agreement 2008 - 2011. The respondents, the Electrical Trades Union of Australia (the ETU) and a number of individual union members, opposed the application. The agreement was between Downer and the ETU, which governed the employment of workers at Downer's Maryborough workshop. The court was required to determine whether the application was valid and whether termination of the agreement was justified.

The central legal issue was whether Downer's application complied with section 239 of the Fair Work Act 2009. This section sets out the criteria for terminating an enterprise agreement by application to the Fair Work Commission, which was previously known as the Australian Industrial Relations Commission. The court had to examine the application to ensure it met the statutory requirements and consider whether termination of the agreement was warranted based on the evidence presented.

The court found that Downer's application satisfied the criteria set out in section 239 of the Fair Work Act 2009. It determined that the application was valid and that the agreement should be terminated, as the evidence demonstrated that the agreement was no longer appropriate for the circumstances of the workplace. The court also noted that the ETU and the union members did not provide sufficient evidence to rebut the application. The court concluded that the agreement should be terminated due to significant changes in the workplace and the inability of the parties to reach a new agreement.

The court ordered that the Downer EDI Engineering Maryborough Workshop Agreement 2008 - 2011 be terminated with immediate effect. It also directed the Fair Work Commission to make necessary orders to give effect to the termination. The court's decision resolved the dispute between Downer and the ETU, allowing Downer to move forward with its business operations without the constraints of the existing 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