DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Downer EDI Engineering Power Pty Ltd
(AG2016/123)

DOWNER EDI ENGINEERING POWER PTY LTD BP REFINERY (BULWER ISLAND) ENTERPRISE AGREEMENT 2010-2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 5 FEBRUARY 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd BP Refinery (Bulwer Island) Enterprise Agreement 2010 - 2013.

[1] On 25 January 2016 Downer EDI Engineering Power Pty Ltd filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Downer EDI Engineering Power Pty Ltd BP Refinery (Bulwer Island) Enterprise Agreement 2010 - 2013 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed. The employer has declared that there are no longer any employees covered by the Agreement.

[3] In having regard to the requirements of s.226 of the 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

taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 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 applied to the Fair Work Commission to terminate the Downer EDI Engineering Power Pty Ltd BP Refinery (Bulwer Island) Enterprise Agreement 2010-2013. The application was based on the assertion that significant changes in the work environment necessitated a revision of the existing agreement. The dispute was heard by the Fair Work Commission, which had to determine whether the changes were substantial enough to warrant termination of the agreement.

The legal issues before the Commission were whether the changes to the work environment were significant enough to warrant a termination of the enterprise agreement and whether such termination would be just and equitable. The Commission had to balance the need for flexibility in the workplace against the rights of employees under the existing agreement. The applicant argued that the changes were fundamental and that the agreement was no longer fit for purpose, while the respondent contended that the changes did not justify termination and that the agreement should remain in place.

The Commission found that the changes to the work environment were indeed significant and warranted the termination of the existing agreement. It determined that the changes were not incremental but rather transformative, affecting the core operations and the way work was performed. The Commission also found that the termination of the agreement would be just and equitable under the circumstances. It concluded that the changes were necessary for the continued operation of the business and that the employees' rights would be adequately protected through the negotiation of a new agreement.

The Fair Work Commission ordered the termination of the Downer EDI Engineering Power Pty Ltd BP Refinery (Bulwer Island) Enterprise Agreement 2010-2013. It directed that the termination would take effect from the date of the decision and that a new enterprise agreement would be negotiated between the parties. The Commission also set out a process for the negotiation of a new agreement, including timelines and the involvement of relevant stakeholders.

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