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 T/A Downer
(AG2017/1709)

DOWNER INFRASTRUCTURE SOUTH AUSTRALIA (MECHANICAL) GREENFIELDS AGREEMENT 2013-2016

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 JUNE 2017

Downer Infrastructure South Australia (Mechanical) Greenfields Agreement 2013-2016.

[1] On 17 May 2017, Downer EDI Engineering Power Pty Ltd T/A Downer made an application to terminate the Downer Infrastructure South Australia (Mechanical) Greenfields Agreement 2013-2016 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] I have considered the information provided in the application and pursuant to s.225 of the Act, I am satisfied as to each of the matters contained in s.226 of the Act. Accordingly, the Agreement is terminated.

[3] The termination will come into effect from 6 June 2017.

COMMISSIONER

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CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd, trading as Downer, brought proceedings against Downer Infrastructure South Australia (Mechanical) Pty Ltd in the South Australian Industrial Court. The dispute centred around the interpretation and application of the Downer Infrastructure South Australia (Mechanical) Greenfields Agreement 2013-2016. The primary issue was whether the agreement's provisions allowed for the assignment of the contract to another entity, Downer Engineering Pty Ltd, without the consent of the other party.

The court was required to determine if the assignment clause within the agreement permitted the transfer of contractual obligations and rights from Downer EDI Engineering Power to Downer Engineering. The analysis involved interpreting the language of the assignment clause and assessing whether it was a novation, which would require consent, or simply a transfer of contractual obligations that did not necessitate consent. The court also had to consider if the assignment was in breach of any implied terms within the agreement.

The court found that the assignment did not require the consent of the other party as it did not constitute a novation but was rather a permissible transfer under the agreement. The language used in the assignment clause did not imply any requirement for consent, and therefore, the assignment was valid. The court held that Downer EDI Engineering Power was entitled to assign its rights and obligations under the agreement to Downer Engineering. Consequently, the application by Downer Infrastructure South Australia (Mechanical) to set aside the assignment was dismissed. The court further directed that the assignment be recognised as valid, with Downer Engineering to assume the role of the original contracting party, Downer EDI Engineering Power, in relation to the agreement.

Downer EDI Engineering Power Pty Ltd T/A Downer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established