Downer EDI Engineering Power Pty Ltd & Downer EDI Engineering Electrical Pty Ltd Summary

[2016] FWCA 1352

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 T/A Downer Engineering; Downer

EDI Engineering Electrical Pty Ltd

(AG2016/351)

DOWNER ENGINEERING POWER PTY LTD AND DOWNER

ELECTRICAL PTY LTD MARYBOROUGH WORKSHOP

AGREEMENT 06-08

Building, metal and civil construction industries

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 9 MARCH 2016

Application for termination of the Downer Engineering Power Pty Ltd and Downer Electrical

Pty Ltd Maryborough Workshop Agreement 06-08.

[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 Engineering Power Pty

Ltd and Downer Electrical Pty Ltd Maryborough Workshop Agreement 06-08 (“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.
[2016] FWCA 1352

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd and Downer EDI Engineering Electrical Pty Ltd applied to terminate the Downer Engineering Power Pty Ltd and Downer Electrical Pty Ltd Maryborough Workshop Agreement 06-08, a collective agreement-based transitional instrument that has passed its nominal expiry date. The application was made pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The matter was heard by Senior Deputy President Richards in Brisbane on 9 March 2016.

The legal issues for the court to decide included whether the Agreement was a collective agreement-based transitional instrument and if its nominal expiry date had passed. The court also needed to determine whether it was contrary to the public interest to terminate the Agreement and if it was appropriate to terminate the agreement considering all the circumstances. The court examined the material before it and found that the Agreement was indeed a collective agreement-based transitional instrument and that its nominal expiry date had passed. Additionally, the court concluded that it was not contrary to the public interest to terminate the Agreement and that it was appropriate to terminate the agreement based on the circumstances presented.

Based on the findings, Senior Deputy President Richards determined that the Agreement could be terminated in accordance with s.227 of the Fair Work Act 2009. The termination took effect from the date of the decision, 9 March 2016.

Downer EDI Engineering Power Pty Ltd & Downer EDI Engineering Electrical Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established