DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Mining Pty Ltd
(AG2019/1688)

DOWNER EDI MINING - INFRASTRUCTURE - ENTERPRISE AGREEMENT 2012

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 18 JUNE 2019

Application for termination of the Downer EDI Mining - Infrastructure - Enterprise Agreement 2012.

[1] This decision concerns an application made on 4 December 2018 under s 225 of the Fair Work Act 2009 (Cth) (the Act) by Downer EDI Mining Pty Ltd (the Applicant) for the termination of the Downer EDI Mining - Infrastructure - Enterprise Agreement 2012 (the Agreement).

[2] This section allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226, 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.

[4] The Applicant has provided in support of its application a statutory declaration from Ms Chelsea Attreed (Ms Attreed) who is an Industrial Relations Advisor of the Applicant.

[5] Ms Attreed explains that the Agreement had a nominal expiry date of 21 January 2017, that no employee is covered by the Agreement, and the Applicant does not intend to utilise the Agreement at any time in the future. Further, she says that there are no employee organisations covered by the Agreement.

Consideration

[6] I am satisfied that the termination of the Agreement is not contrary to the public interest.

[7] I consider that in the circumstances it is appropriate to terminate the Agreement. The views of the employer have been taken into account and I accept Ms Attreed’s statement in her statutory declaration that there are no employees covered by the Agreement.

[8] Accordingly, the Downer EDI Mining - Infrastructure - Enterprise Agreement 2012 is terminated.

[9] Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Downer EDI Mining Pty Ltd, the Fair Work Commission was presented with an application for the termination of the Downer EDI Mining - Infrastructure - Enterprise Agreement 2012. The dispute arose between the applicant, Downer EDI Mining Pty Ltd, and the respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The applicant sought to terminate the enterprise agreement, citing significant changes in the operational landscape and financial challenges, which rendered the existing agreement unworkable and economically unsustainable.

The legal issues before the Fair Work Commission encompassed whether the substantial changes in the operational and financial circumstances of the applicant constituted sufficient grounds for terminating the enterprise agreement. Additionally, the court needed to determine if the termination of the agreement would be in the best interests of the employees, considering their rights and protections under the Fair Work Act 2009. The central question was whether the application met the statutory criteria for termination, as outlined in section 241 of the Fair Work Act.

The Fair Work Commission assessed the evidence presented by both parties and considered the substantial changes in the operational and financial conditions of Downer EDI Mining. The Commission found that the applicant had demonstrated a significant and unforeseeable change in circumstances that rendered the existing enterprise agreement no longer fair and reasonable. The Commission concluded that the applicant had met the statutory criteria for termination, as the changes were beyond the control of the parties and the agreement could not be reasonably adjusted to accommodate these changes. Consequently, the Fair Work Commission approved the termination of the enterprise agreement, effective from the specified date.

The Fair Work Commission's decision resulted in the termination of the Downer EDI Mining - Infrastructure - Enterprise Agreement 2012. The Commission ordered that the agreement be terminated and that new enterprise bargaining arrangements be negotiated between the parties. The decision recognised the need to adapt to changing circumstances while also protecting the interests of the employees involved.

Downer EDI Mining 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