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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Downer EDI Engineering Power Pty Ltd, sought termination of the Master Services Operations Project Enterprise Agreement 2017 (the agreement). The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment and workforce composition. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application on the grounds that the changes did not warrant termination of the agreement.

The central legal issue before the Commission was whether the changes in the business environment and workforce composition were substantial enough to warrant termination of the enterprise agreement under section 237 of the Fair Work Act 2009. The Commission had to determine if the changes had fundamentally altered the bargaining position of the parties, making the agreement inappropriate or obsolete. Additionally, the Commission needed to assess whether the applicant had demonstrated that there were no alternative means of resolving the issues within the agreement.

The Commission found that the changes in the business environment and workforce composition were indeed significant, leading to a fundamental shift in the bargaining position of the parties. The changes had resulted in a workforce that was no longer adequately represented by the existing agreement. The Commission also noted that the applicant had not explored all possible alternatives within the agreement to address the issues arising from the changes. Consequently, the Commission concluded that the agreement was no longer appropriate and ordered its termination.

As a result of the decision, the Fair Work Commission terminated the Master Services Operations Project Enterprise Agreement 2017, effective from the date of the decision. The termination allows the parties to negotiate a new enterprise agreement that better reflects the current business environment and workforce composition.

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

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established