Downer EDI Engineering Power Pty Ltd

[2016] FWCA 1368

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure

(AG2015/6985)

DOWNER INFRASTRUCTURE CENTRAL QUEENSLAND REGIONAL

AREA ENTERPRISE AGREEMENT, 2014 - 2017

Manufacturing and associated industries

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 2 MARCH 2016

Application for termination of the Downer Infrastructure Central Queensland Regional Area

Enterprise Agreement 2014-2017.

[1] On 14 December 2015 Downer EDI Engineering Power Pty Ltd T/A Downer

Infrastructure filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”) to

terminate the Downer Infrastructure Central Queensland Regional Area Enterprise Agreement

2014-2017 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to

be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made
under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied
with subsection 220(2) (which deals with giving employees a reasonable
opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with
whichever of subsection 221(1) or (2) applies (those subsections deal with
agreement to the termination of different kinds of enterprise agreements by
employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for
believing that the employees have not agreed to the termination; and

[2016] FWCA 1368

(d) the FWC considers that it is appropriate to approve the termination taking
into account the views of the employee organisation or employee organisations
(if any) covered by the agreement.

[3] The application was supported by a statutory declaration from the employer that

declared, among other things, that the employees were notified of the time and place of the

vote and that a ballot of employees supported the termination. Based on the material that is

before me including the statutory declaration, I am satisfied that the requirements of s.223 of

the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd, trading as Downer Infrastructure, applied for the termination of the Downer Infrastructure Central Queensland Regional Area Enterprise Agreement 2014-2017. The matter was heard by the Fair Work Commission (FWC) and resulted in the approval of the application for termination. The primary issue the court needed to decide was whether the conditions stipulated in section 223 of the Fair Work Act 2009 for the approval of the termination of an enterprise agreement had been met. These conditions include compliance with the requirements of section 220(2) regarding reasonable opportunities for employees to decide on the agreement, adherence to the provisions of section 221(1) or (2) concerning the agreement to the termination by employee vote, the absence of other reasonable grounds for believing that the employees have not agreed to the termination, and the appropriateness of approving the termination considering the views of the employee organisation.

The court concluded that the employer had satisfied the conditions set forth in section 223 of the Act. This determination was based on the employer's statutory declaration, which confirmed that the employees were duly notified of the vote and that a ballot had been conducted in support of the termination. The court found no evidence to suggest that the employees had not agreed to the termination or that there were other reasonable grounds to believe otherwise. The decision to approve the termination was made considering the views of the employee organisation, as required by section 224 of the Act.

In light of the findings, the court approved the termination of the Downer Infrastructure Central Queensland Regional Area Enterprise Agreement 2014-2017, effective immediately. The termination was in accordance with the requirements of the Fair Work Act 2009, and the decision was made based on the evidence provided by the employer and the absence of any contrary evidence or reasonable grounds.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established