Downer EDI Engineering Power Pty Ltd

[2021] FWCA 6813

[2021] FWCA 6813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2021/8105)

DOWNER EDI ENGINEERING POWER PTY LTD DLNG ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER MATHESON	SYDNEY, 23 NOVEMBER 2021

Application for termination of the Downer EDI Engineering Power Pty Ltd DLNG Enterprise Agreement 2017.

[1] On 28 October 2021, Downer EDI Engineering Power Pty Ltd (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Downer EDI Engineering Power Pty Ltd DLNG Enterprise Agreement 2017 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

[2] The Agreement is a single enterprise agreement. It was approved by Deputy President Colman on 18 September 2017. 1

[3] The nominal expiry date of the Agreement is 25 September 2020.

Legislation

[4] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration – s.225

Is the Applicant an employer covered by the Agreement?

[5] Clause 2.2(a)(i) names Downer EDI Engineering Power Pty Ltd as a party to the Agreement. The Applicant is Downer EDI Engineering Power Pty Ltd and I am satisfied it is the same legal entity.

[6] Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement passed its nominal expiry date?

[7] Clause 2.1 of the Agreement provides that the Agreement will nominally expire three years after commencement, being 25 September 2020. Having considered the materials before the Commission and clause 2.1 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.

Consideration – s.226

Section 226(a) – Public interest

[8] The Applicant submitted that:

•  it had a maintenance service contract with the owner and occupier of the Darwin LNG processing facilities and the Agreement covered employees who conducted maintenance services at that specific site and location;

•  the owner and occupier no longer required the Applicant to undertake these services; and

•  employees covered by the Agreement were terminated by the end of February 2021 and no employees have been employed at that site or under the Agreement since that time.

[9] The Applicant submitted that it is not contrary to public interest to terminate the Agreement as:

•  the Agreement has no work to do, as the Applicant does not employ any employees covered by the Agreement;

•  there are no foreseeable works where the scope of the Agreement could apply to employees of the Applicant; and

•  the termination of the Agreement will have no consequential effects.

[10] In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

Section 226(b) – Appropriateness

[11] On 1 November 2021, the Commission directed that:

(a) by no later than 4:00pm on 2 November 2021, the Applicant must serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee organisation covered by the Agreement;

(b) by no later than 4:00pm on 4 November 2021, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with the direction above;

(c) by no later than 4:00pm on 9 November 2021, the Applicant must file in the Commission and serve on each employee organisation covered by the Agreement an outline of arguments, statements of evidence or other documents the Applicant intend to rely upon in support of its application to terminate the Agreement;

(d) by no later than 4:00pm on 16 November 2021, any employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement; and

(e) by no later than 4:00 pm on 18 November 2021, the Applicant must file in the Commission and serve on each employee organisation covered by the Agreement any materials it wishes to file in reply.

[12] The Commission’s directions also noted that if any employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.

[13] On 8 November 2021, Mr Robert Twomey, Industrial Relations Manager, filed a statutory declaration confirming compliance with the above directions.

[14] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union are parties to the Agreement. Each of these employee organisations confirmed they did not have any objections to the application to terminate the Agreement.

[15] Clause 2.2 of the Agreement states that the Agreement covers all “employees of the Company who are engaged in maintenance services, fabrication, modification, commissioning / decommissioning, upgrade, capital work, projects, turnaround and shutdown activities and any other similar work at the Darwin LNG facility, Northern Territory, in a classification set out in this Agreement (Employees)”. Mr Twomey declared in the Form F24C filed in support of the Application that the Applicant did not employ any employees falling within this coverage. The Applicant submitted that as it does not employ any employees, termination of the Agreement will have no consequential effects.

Conclusion

[16] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

[17] Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 23 November 2021. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

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 1   [[2017] FWCA 4856].