Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering Power Pty Ltd

[2021] FWCA 6494

[2021] FWCA 6494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering Power Pty Ltd
(AG2021/8104)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 29 OCTOBER 2021

Application for termination of the Master Services Operations Project Enterprise Agreement 2017

[1] This decision concerns an application made by Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering Power Pty Ltd (the Applicant) for the termination of the Master Services Operations Project Enterprise Agreement 2017 (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 Mr Robert Twomey (Mr Twomey), the Manager of Industrial Relations (West) of the Applicant.

[6] Mr Twomey explains that the Agreement has a nominal expiry date of 5 October 2021, and that the Applicant does not employ any employees under clause 2 of the Agreement, and there are no foreseeable works where the scope of the Agreement could apply to employees of the Applicant.

[7] The Applicant submits that in the circumstances terminating the Agreement would be in the public interest.

Consideration

[8] I am satisfied that termination of the Agreement is not contrary to the public interest.

[9] Taking into account the Applicant’s statement that there are no employees covered by the Agreement, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[10] Accordingly, the Master Services Operations Project Enterprise Agreement 2017 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

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