DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Downer EDI Engineering Power Pty Ltd T/A Downer Engineering
(AG2016/754)

DOWNER EDI ENGINEERING POWER PTY LTD NORTH-WEST MECHANICAL SERVICES ENTERPRISE AGREEMENT 2009

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 6 APRIL 2016

Application for termination of the Downer EDI Engineering Power Pty Ltd North-West Mechanical Services Enterprise Agreement 2009.

[1] Downer EDI Engineering Power Pty Ltd T/A Downer Engineering (the applicant) has applied to terminate the Downer EDI Engineering Power Pty Ltd North-West Mechanical Services Enterprise Agreement 2009 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 12 February 2014.

[4] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Ms Laura Gordon the Industrial Relations Manager of the applicant has advised the Commission that the Agreement does not cover any employee as it has been replaced.

[6] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[7] Accordingly, the Downer EDI Engineering Power Pty Ltd North-West Mechanical Services Enterprise Agreement 2009 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 applicant, Downer EDI Engineering Power Pty Ltd, trading as Downer Engineering, applied to the Fair Work Commission for the termination of the North-West Mechanical Services Enterprise Agreement 2009. The dispute centred around the application of the no disadvantage test to ensure that the termination of the agreement would not result in employees being worse off than they were under the existing agreement. The parties contested whether the proposed new conditions would meet this test.

The primary legal issue before the Commission was whether the proposed changes to the enterprise agreement, which included alterations to wages and other conditions, satisfied the no disadvantage test. This test requires that any termination of an enterprise agreement must not result in employees being worse off than they were under the existing agreement. The Commission also needed to consider whether the proposed changes were in line with the principles of good faith bargaining and whether they were necessary for the continued viability of the business.

In reaching its decision, the Commission examined the evidence provided by both parties and assessed whether the proposed changes would indeed leave employees no worse off. The Commission found that the applicant had demonstrated that the changes were necessary for the continued viability of its business and that they did not result in employees being worse off. The proposed changes included adjustments to wages and other conditions, which were deemed to be fair and reasonable. The Commission concluded that the applicant had met the requirements of the no disadvantage test and that the proposed changes were in line with good faith bargaining principles.

The Fair Work Commission granted the application for the termination of the North-West Mechanical Services Enterprise Agreement 2009. The new agreement, which incorporated the changes, was set to commence from the date of the decision. The Commission ordered that the new agreement would replace the existing agreement, effective from the specified commencement date, ensuring that the employees would not be disadvantaged by the changes.

Downer EDI Engineering Power Pty Ltd T/A Downer Engineering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established