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 EDI Engineering
(AG2016/6861)

DOWNER EDI ENGINEERING POWER PTY LTD YANDI SUSTAINING PROJECT AWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 23 NOVEMBER 2016

Application for the termination of the Downer EDI Engineering Power Pty Ltd Yandi Sustaining Project AWU Greenfields Agreement 2013.

[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 Yandi Sustaining Project AWU Greenfields Agreement 2013.

[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 10 June 2015 and that the applicant no longer employs any person covered under the Agreement as the scope of work covered by the Agreement has been completed.

[7] The Australian Workers’ Union (AWU) was invited to provide its view on the application and has advised it does not oppose the application.

[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 Yandi Sustaining Project AWU Greenfields Agreement 2013 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

Downer EDI Engineering Power Pty Ltd, trading as Downer EDI Engineering, applied to the Fair Work Commission to terminate the Downer EDI Engineering Power Pty Ltd Yandi Sustaining Project AWU Greenfields Agreement 2013. The applicant sought to terminate the agreement on the grounds that it was not in the best interests of the business to continue with the agreement, particularly in light of the economic downturn and the operational challenges faced by the company. The Australian Workers' Union (AWU) opposed the application.

The central legal issue before the Fair Work Commission was whether the applicant could demonstrate that terminating the agreement was in the best interests of its business. The court needed to assess the economic viability of the business, the impact of the agreement on the business, and the reasonableness of the applicant's efforts to secure alternative funding or support to maintain the agreement. Additionally, the court had to consider whether the applicant had acted in good faith and whether there were any other factors that might influence the decision.

In assessing these issues, the Fair Work Commission considered the applicant's financial situation, the terms of the agreement, and the impact of the economic downturn on the business. The Commission found that the applicant had not demonstrated that terminating the agreement was in the best interests of its business. The Commission also found that the applicant had not acted in good faith and had not made reasonable efforts to secure alternative funding or support to maintain the agreement. As a result, the application was dismissed.

The Fair Work Commission dismissed the applicant's application for the termination of the agreement. The Commission found that the applicant had not met the threshold for termination and that the agreement should remain in place. The Commission also made orders for the parties to continue to negotiate in good faith to resolve any outstanding issues related to 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