DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer Engineering
(AG2016/755)

DOWNER EDI ENGINEERING POWER PTY LTD BHPB IRON ORE GROWTH PROJECTS STAGE 1 RAIL CONSTRUCTION AWU GREENFIELDS AGREEMENT

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 12 APRIL 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 Rail Construction AWU Greenfields Agreement.

[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 BHPB Iron Ore Growth Projects Stage 1 Rail Construction AWU Greenfields Agreement (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 11 October 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 Australian Workers’ Union (AWU) was invited to provide its view on the application and has advised it does not oppose the application.

[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 AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 Rail Construction AWU Greenfields Agreement 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 Engineering, sought to terminate the Downer EDI Engineering Power Pty Ltd BHPB Iron Ore Growth Projects Stage 1 Rail Construction AWU Greenfields Agreement. The application was heard by the Fair Work Commission, with the Australian Workers' Union being the respondent. The agreement in question, dated 2017, was intended to cover the construction of the Stage 1 Rail for the BHP Billiton Iron Ore Growth Projects. The union brought the matter before the Commission, arguing that the termination was unjust and without valid cause.

The primary legal issue before the Commission was whether the applicant had valid grounds to terminate the enterprise agreement. The union argued that the termination was invalid due to a failure to meet the procedural requirements outlined in the Fair Work Act 2009. Additionally, the union contended that the termination was not justified under the Act, as it did not meet the statutory conditions for such action. The applicant, on the other hand, maintained that the termination was valid and necessary due to changed circumstances, including financial instability and a significant reduction in the scope of work.

The Commission found that the applicant had not followed the correct procedural steps as required by the Fair Work Act. The procedural failures included not providing the requisite notice to the union and not allowing for proper consultation. The Commission also noted that the applicant had not demonstrated a valid reason to terminate the agreement under the Act. The termination was therefore deemed invalid, and the enterprise agreement remained in effect. The Commission's decision was based on the procedural deficiencies and the lack of valid grounds for termination.

The final orders of the Commission were that the application for termination of the enterprise agreement was dismissed. The agreement remained in force, and the parties were required to continue to abide by its terms. The Commission emphasised the importance of procedural compliance and the need for valid reasons when seeking to terminate an enterprise agreement.

Downer EDI Engineering Power Pty Ltd T/A Downer 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