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
(AG2016/354)

DOWNER EDI ENGINEERING POWER PTY LTD BP REFINERY (BULWER ISLAND) FLARE PROJECT WORKPLACE AGREEMENT..

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 BP Refinery (Bulwer Island) Flare Project 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 EDI Engineering Power Pty Ltd BP Refinery (Bulwer Island) Flare Project 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 applied to the Fair Work Commission for the termination of the Downer EDI Engineering Power Pty Ltd BP Refinery (Bulwer Island) Flare Project Workplace Agreement 2007 2009. The respondent to the application was the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the validity and enforceability of the workplace agreement in light of changes to the Fair Work Act 2009 (Cth). The Commission was tasked with determining whether the workplace agreement was validly made, and if it complied with the current legislative requirements.

The primary legal issue was whether the workplace agreement, originally made in 2007, remained valid following amendments to the Fair Work Act 2009, particularly the introduction of the new enterprise agreement process. The Commission also needed to consider whether the agreement had been made in good faith and whether the parties had genuinely negotiated the terms. Additionally, the court had to examine whether the agreement met the requirements for being a "single interest" agreement as defined by the Fair Work Act 2009 (Cth).

The Commission found that the workplace agreement was validly made and complied with the requirements of the Fair Work Act 2009 (Cth). The agreement was deemed to have been made in good faith, and the parties had genuinely negotiated its terms. The agreement was also considered to be a "single interest" agreement. The Commission concluded that the agreement did not need to be terminated and was still in effect. The application was dismissed.

The Fair Work Commission dismissed the application for termination of the workplace agreement, affirming its validity and enforceability. The decision underscores the importance of workplace agreements being made in good faith and in compliance with legislative requirements. The Commission's ruling provides clarity for employers and unions regarding the ongoing validity of pre-existing 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