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
(AG2016/6858)

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

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 22 NOVEMBER 2016

Application for the termination of the Downer EDI Engineering Power Pty Ltd Yandi Sustaining Project CFMEU 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 CFMEU Greenfields Agreement 2013 (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 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 Construction, Forestry, Mining and Energy Union (CFMEU) 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 CFMEU, 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 CFMEU 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

The parties involved in this case were Downer EDI Engineering Power Pty Ltd, trading as Downer EDI Engineering, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose over an application to terminate the Downer EDI Engineering Power Pty Ltd Yandi Sustaining Project CFMEU Greenfields Agreement 2013. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal.

The central legal issue before the Commission was whether the conditions stipulated in section 234 of the Fair Work Act 2009 were met for the termination of the enterprise agreement. Specifically, the applicant argued that the agreement had become ineffective due to substantial changes in the project's circumstances since its inception. The Commission needed to assess if these changes warranted the termination of the existing agreement and the introduction of a new one.

The Commission meticulously reviewed the evidence and submissions from both parties, focusing on the nature and extent of the changes to the project and their impact on the agreement. It concluded that the substantial changes in the project's scope and operational environment justified the termination of the existing agreement. The Commission found that the changes rendered the original agreement unworkable and necessitated a new agreement to reflect the current realities of the project. Consequently, the Commission granted the application for termination.

In its decision, the Fair Work Commission terminated the Downer EDI Engineering Power Pty Ltd Yandi Sustaining Project CFMEU Greenfields Agreement 2013, effective from the date of the decision. The Commission directed that a new enterprise agreement be negotiated to address the current operational needs and circumstances of the project.

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