Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure

[2016] FWCA 7692

[2016] FWCA 7692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure
(AG2016/6150)

DOWNER INFRASTRUCTURE BP REFINERY (BULWER ISLAND) ENTERPRISE AGREEMENT 2013-2016

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 24 OCTOBER 2016

Application for termination of the Downer Infrastructure BP Refinery (Bulwer Island) Enterprise Agreement 2013-2016.

[1] On 4 October 2016, Downer EDI Engineering Power Pty Ltd T/A Downer Engineering (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Downer Infrastructure BP Refinery (Bulwer Island) Enterprise Agreement 2013-2016 (the Agreement)

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

‘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.’

[3] The application was supported by a statutory declaration from the Employer that declared, amongst other things, that no employees of the Employer were covered by the Agreement.

[4] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) and the Australian Workers’ Union (the AWU) are employee organisations that are covered by the Agreement.

[5] On 6 October 2016, my Associate wrote to the AMWU and the AWU seeking their views in relation to the application by no later than 2:00pm on 11 October 2016.

[6] In response, the AMWU advised that it is of the opinion that there is no need to terminate the agreement but does not oppose the application. The AWU did not provide their views in relation to the application.

Consideration

[7] The leading authority with respect to applications made pursuant to s.225 is a decision of a Full Bench of the Commission in Aurizon 1. In that decision the Full Bench said:

‘The legislative scheme therefore enables and facilitates good faith bargaining for an enterprise agreement. It also facilitates the making of enterprise agreements but does not mandate that result. Once an enterprise agreement is made and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; or a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act; or both may occur.’

[8] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a) and having regard to the decision in Aurizon, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[9] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[10] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[11] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[12] The termination will take effect from 24 October 2016.

COMMISSIONER

 1   Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 at [126]

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