DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering
(AG2016/759)

DOWNER EDI ENGINEERING POWER PTY LTD RAIL CAPACITY ENHANCEMENT PROJECT CEPU GREENFIELDS AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 15 APRIL 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd Rail Capacity Enhancement Project CEPU Greenfields Agreement 2011.

[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 Rail Capacity Enhancement Project CEPU Greenfields Agreement 2011 (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 3 November 2014 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was invited to provide its view on the application but has 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 Downer EDI Engineering Power Pty Ltd Rail Capacity Enhancement Project CEPU Greenfields Agreement 2011 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

Downer EDI Engineering Power Pty Ltd, trading as Downer EDI Engineering, applied to the Fair Work Commission to terminate the Rail Capacity Enhancement Project CEPU Greenfields Agreement 2011. The applicant argued that the agreement was no longer appropriate due to changed circumstances, including changes in the business environment and the need to adapt to new operational requirements. The Fair Work Commission was tasked with determining whether the application met the criteria for termination under section 241-2 of the Fair Work Act 2009.

The central legal issue before the Commission was whether the changed circumstances sufficiently warranted the termination of the agreement. The Commission had to assess whether the changes were significant enough to justify terminating the agreement and whether the termination would not adversely affect the employees' employment conditions. The Commission considered the nature of the changes, the impact on the business, and the potential consequences for the employees.

The Commission concluded that the applicant had demonstrated significant changes in the business environment that warranted the termination of the agreement. The Commission found that the changes were substantial and had a material impact on the business operations. The Commission also determined that the termination would not result in a detriment to the employees' conditions of employment. Consequently, the Commission granted the application for termination of the agreement, effective from the specified date. The decision highlighted the importance of adaptability in employment agreements to reflect the dynamic nature of business environments while ensuring employee protections.

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