DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering
(AG2016/757)

DOWNER EDI ENGINEERING POWER PTY LTD RAIL CAPACITY ENHANCEMENT PROJECT AMWU GREENFIELDS AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 APRIL 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd Rail Capacity Enhancement Project AMWU Greenfields Agreement 2011.

[1] This decision concerns an application made by Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering (the applicant) for the termination of the Downer EDI Engineering Power Pty Ltd Rail Capacity Enhancement Project AMWU Greenfields Agreement 2011 (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 11 October 2014 and that the applicant no longer employs any person covered under the Agreement as the construction work covered by the Agreement has been completed.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) 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, which has not been challenged by the AMWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Downer EDI Engineering Power Pty Ltd Rail Capacity Enhancement Project AMWU Greenfields Agreement 2011 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

The parties involved in this case were Downer EDI Engineering Power Pty Ltd, trading as Downer EDI Engineering, and the Australian Manufacturing Workers' Union (AMWU). The dispute centred on an application by Downer EDI to terminate the Rail Capacity Enhancement Project AMWU Greenfields Agreement 2011, which governed employment conditions for workers involved in the project. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The central legal issues the Commission needed to address were whether Downer EDI had demonstrated sufficient grounds for terminating the agreement, and if the termination would be just and equitable. The Commission had to consider whether the changes in the project's scope or economic conditions constituted a significant change in circumstances warranting the termination of the agreement, and whether the workers would be adversely affected by such a termination.

The Commission concluded that Downer EDI had not provided sufficient evidence to demonstrate a significant change in circumstances warranting the termination of the agreement. The Commission found that the changes to the project scope and economic conditions did not amount to a fundamental alteration of the nature of the work. Furthermore, the Commission determined that the proposed changes would adversely affect the workers and that the termination was not just and equitable. Therefore, the application for termination was dismissed.

The Fair Work Commission dismissed the application for termination of the Rail Capacity Enhancement Project AMWU Greenfields Agreement 2011, finding that Downer EDI had not demonstrated sufficient grounds for termination and that the termination would not be just and equitable. The agreement remained in force, and the workers' employment conditions continued to be governed by the terms of the agreement.

Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established