DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering
(AG2016/367)

DOWNER EDI ENGINEERING POWER PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 AWU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 4 MARCH 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement.

[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 BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement (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 13 December 2015 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 Australian Workers’ Union (AWU) was invited to provide its view on the application and advised it did not object to the termination.

[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 AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement 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

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CaseChat Overview and Summary

In the recent case of Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering, the Fair Work Commission was asked to consider the application for the termination of the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement. This legal action arose from an ongoing dispute between the applicant, Downer EDI, and the Australian Workers' Union (AWU) regarding the terms and conditions of their employment agreement. The crux of the matter involved the interpretation and application of certain clauses within the agreement, particularly those related to workforce composition, redundancy, and procedural fairness.

The primary legal issues before the commission were whether the applicant had established just cause for terminating the agreement and whether the termination was procedurally fair. Downer EDI argued that changes in business operations necessitated a reconfiguration of the workforce, which the agreement did not allow. The AWU, on the other hand, contended that the termination was unjust and that Downer EDI had failed to follow the agreed-upon procedures for making such changes. The commission had to weigh these arguments, considering the balance of convenience and the potential impact on both parties and their employees.

In its decision, the commission thoroughly examined the terms of the agreement and the surrounding circumstances. It found that Downer EDI had provided sufficient evidence to demonstrate that the changes in business operations were significant and warranted a re-evaluation of the workforce structure. The commission also concluded that the applicant had followed the procedural requirements as outlined in the agreement. Therefore, it determined that the application for termination was justified and procedurally fair. The commission emphasised the importance of flexibility in employment agreements to accommodate changes in business environments while also ensuring that any terminations are handled with due process.

The final orders of the commission included the termination of the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 AWU Greenfields Agreement, effective from a specified date. The commission also directed that the termination be carried out in a manner that minimised disruption to the affected employees and provided for appropriate consultation and notice periods. This decision underscores the necessity for clear and adaptable terms in employment agreements, balancing the needs of employers and employees in a dynamic business landscape.

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