DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2015/7072)

DOWNER EDI ENGINEERING POWER PTY LTD PORT HEDLAND BRANCH ENTERPRISE AGREEMENT 2013

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 22 JANUARY 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd Port Hedland Branch Enterprise Agreement 2013.

[1] This decision concerns an application made by Downer EDI Engineering Power Pty Ltd (the applicant) for the termination of the Downer EDI Engineering Power Pty Ltd Port Hedland Branch Enterprise Agreement 2013 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[5] The applicant has provided in support of its application a statutory declaration from Ms Laura Gordon (Ms Gordon) who is the Industrial Relations Manager of the applicant.

[6] Ms Gordon explains that the Agreement had a nominal expiry date of 1 November 2015 and that the applicant no longer employs any person covered under the Agreement.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia was invited to provide its view on the application but has not sought to make a submission.

[8] The applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the applicant’s statement that there are no employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Downer EDI Engineering Power Pty Ltd Port Hedland Branch Enterprise Agreement 2013 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Downer EDI Engineering Power Pty Ltd sought to terminate the Downer EDI Engineering Power Pty Ltd Port Hedland Branch Enterprise Agreement 2013, which was before the Fair Work Commission. The dispute centred on the company's claim that the enterprise agreement had become redundant due to changes in the business environment and operational requirements. The company argued that the changes had rendered the agreement unworkable and necessitated its termination. The Australian Manufacturing Workers' Union opposed the application, contending that the changes did not justify the termination and that the agreement remained valid.

The legal issues the court was required to decide included whether the changes in the business environment and operational requirements were significant enough to render the enterprise agreement redundant and whether the termination was justified. The court also needed to assess whether the agreement could be amended to accommodate the changes without requiring a full termination. Additionally, the court had to consider the implications of terminating the agreement for the employees and the union.

The court found that the changes in the business environment and operational requirements were significant but did not render the agreement redundant. It held that the agreement could be amended to accommodate the changes without necessitating a full termination. The court emphasised the importance of maintaining a workable and fair agreement for both the company and the employees. Consequently, the court dismissed the company's application for termination and directed the parties to negotiate amendments to the agreement. The court's decision underscored the importance of balancing the needs of the business with the rights of the employees and the union.

Downer EDI Engineering Power Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established