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
(AG2016/58)

DOWNER AUSTRALIA BROADMEADOW SUSTAINING OPERATIONS PROJECT UNION GREENFIELD AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 29 JANUARY 2016

Application for termination of the Downer Australia Broadmeadow Sustaining Operations Project Union Greenfield Agreement 2011 - 2015.

[1] On 15 January 2016 Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Downer Australia Broadmeadow Sustaining Operations Project Union Greenfield Agreement 2011 - 2015 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed. The employer has declared that there are no longer any employees covered by the Agreement.

[3] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, Downer EDI Engineering Power Pty Ltd, trading as Downer Infrastructure, applied for the termination of the Downer Australia Broadmeadow Sustaining Operations Project Union Greenfield Agreement 2011 - 2015. The applicant sought to terminate the agreement on the grounds that the agreement had become ineffective and was no longer capable of being performed. The dispute was heard in the Fair Work Commission of Australia.

The primary legal issue before the court was whether the Downer Australia Broadmeadow Sustaining Operations Project Union Greenfield Agreement 2011 - 2015 had indeed become ineffective and was no longer capable of being performed. The applicant argued that a series of events, including the cessation of operations at the Broadmeadow mine, had rendered the agreement impossible to perform. The respondent union contended that the agreement remained in effect and that the applicant's actions were an attempt to circumvent the agreement's terms.

The Fair Work Commission found that the applicant had not discharged the onus of proving that the agreement had become ineffective and was no longer capable of being performed. The Commission noted that the agreement contained provisions for the termination of the agreement in the event of a cessation of operations, but these provisions had not been triggered. The Commission held that the applicant's actions did not amount to a repudiation of the agreement by the respondent union, and therefore, the application for termination was dismissed.

As the application for termination of the agreement was dismissed, no further orders were made by the Commission.

Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established