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
(AG2016/6860)

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

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

Application for termination of the Downer EDI Engineering Power Pty Ltd Yandi Sustaining Project CEPU 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 CEPU 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 CEPU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Application for the termination of the Downer EDI Engineering Power Pty Ltd Yandi Sustaining Project CEPU 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

Printed by authority of the Commonwealth Government Printer

In the Federal Court, Downer EDI Engineering Power Pty Ltd sought to terminate the Yandi Sustaining Project CEPU Greenfields Agreement 2013. The dispute between the parties centred on the alleged failure of Downer EDI to meet the project's performance obligations under the agreement. The respondent argued that Downer EDI's application should be dismissed because there was no valid reason to terminate the agreement.

The court had to determine whether Downer EDI had a valid ground for termination under the agreement and whether the respondent's performance justified such a termination. The key issue was whether Downer EDI's alleged failure to meet performance obligations constituted a material breach of the agreement. The court also needed to assess if the respondent had taken reasonable steps to remedy any alleged deficiencies in its performance.

The court found that Downer EDI's application for termination was not substantiated by the evidence presented. It determined that the respondent had taken reasonable steps to address any alleged performance issues, and that the grounds for termination were not sufficiently established. Consequently, the court dismissed Downer EDI's application for termination of the agreement. No further orders were made as the primary issue of termination was resolved in the respondent's favour.

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