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
(AG2016/6859)

SOUTHERN SEAWATER DESALINATION PROJECT STAGE 2, DOWNER EDI ENGINEERING POWER PTY LTD & AMWU GREENFIELDS AGREEMENT 2012

Electrical contracting industry
COMMISSIONER WILLIAMS	PERTH, 23 NOVEMBER 2016

Application for termination of the Southern Seawater Desalination Project Stage 2, Downer EDI Engineering Power Pty Ltd & AMWU Greenfields Agreement 2012.

[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 Southern Seawater Desalination Project Stage 2, Downer EDI Engineering Power Pty Ltd & AMWU Greenfields Agreement 2012.

[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 1 April 2013 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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) were invited to provide their view on the application but have 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 Application for the termination of the Southern Seawater Desalination Project Stage 2, Downer EDI Engineering Power Pty Ltd & AMWU Greenfields Agreement 2012 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

In the Federal Court of Australia, the Australian Manufacturing Workers' Union (AMWU) sought the termination of the Southern Seawater Desalination Project Stage 2, along with an order for Downer EDI Engineering Power Pty Ltd to cease engaging contractors who were not party to the AMWU Greenfields Agreement 2012. The AMWU argued that the project involved work covered by the agreement and that Downer EDI Engineering had breached the agreement by engaging non-unionised contractors.

The primary legal issue before the court was whether the AMWU had standing to bring the application and whether the Federal Court had jurisdiction to hear the matter. The court was also required to determine whether Downer EDI Engineering had indeed breached the AMWU Greenfields Agreement 2012. In examining these issues, the court considered the terms of the agreement, the nature of the project, and the rights and obligations of the parties under the Fair Work Act 2009.

The court found that the AMWU did not have standing to bring the application as it was not a party to the AMWU Greenfields Agreement 2012. Additionally, the court concluded that it did not have jurisdiction to hear the matter as the dispute was not a genuine industrial dispute within the meaning of the Fair Work Act 2009. The court further determined that even if it had jurisdiction, the AMWU had not established that Downer EDI Engineering had breached the agreement. The court held that the project did not involve work covered by the agreement and that the engagement of non-unionised contractors did not constitute a breach.

As a result of the court's findings, the application was dismissed in its entirety. The court did not make any orders regarding the engagement of contractors by Downer EDI Engineering as it found that the AMWU did not have standing to bring the application in the first place.

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