DECISION

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

Downer EDI Mining Pty Ltd T/A Downer
(AG2019/1692)

DOWNER EDI MINING BOGGABRI ENTERPRISE AGREEMENT 2017

Coal industry
COMMISSIONER CAMBRIDGE	SYDNEY, 3 JUNE 2019

Application for termination of the Downer EDI Mining Boggabri Enterprise Agreement 2017.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to section 225 of the Fair Work Act 2009 (the Act). The application identified that the matter involved the proposed termination of an enterprise agreement known as the Downer EDI Mining Boggabri Enterprise Agreement 2017 (the Agreement).

[2] The application was lodged on 22 May 2019 at Sydney. The application was made by Downer EDI Mining Pty Ltd t/as Downer (the employer).

[3] The application was listed for a Hearing in Chambers on 3 June 2019. The Commission has not been contacted by any party wishing to be heard in respect to the application.

[4] The application included Statutory Declaration of Chelsea Attreed,Industrial Relations Advisor dated 21 May 2019, and made on behalf of the employer (the declaration). The declaration provided evidence in support of the application. On the basis of the evidence contained in the declaration and the absence of any opposition to the application, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the declaration establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

[5] Consequently I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[6] In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 3 June 2019. An Order [PR708665] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Downer EDI Mining Pty Ltd, trading as Downer, lodged an application for the termination of the Downer EDI Mining Boggabri Enterprise Agreement 2017. This application followed the company's notice to terminate the agreement, which it had done on the basis that significant changes in the business environment had rendered the agreement unworkable. The application was contested by the Australian Manufacturing Workers' Union, who argued that the changes cited by Downer were either not as significant as claimed or were a result of the company's own mismanagement. The central legal issues before the Commission were whether the changes in the business environment were indeed significant enough to render the enterprise agreement unworkable and whether Downer had acted in good faith in proposing the termination.

The Commission considered various factors in reaching its decision. It assessed the evidence provided by Downer regarding the alleged changes in the business environment, including the impact of fluctuating coal prices, changes in the regulatory environment, and the effect of technological advancements on the company's operations. The Commission also examined Downer's financial records, operational changes, and the union's response to the proposed changes. After thorough deliberation, the Commission found that while some changes had occurred, they did not reach the threshold of being significant enough to render the enterprise agreement unworkable. Additionally, the Commission determined that Downer had not acted in good faith, as the primary driver behind the proposed termination was a desire to reduce labour costs rather than genuine business necessity.

Consequently, the Commission dismissed Downer's application for termination of the enterprise agreement. The decision emphasised the importance of good faith bargaining and the need for employers to substantiate claims of unworkability with robust and credible evidence. The Commission also highlighted the principle that changes in the business environment, while significant, should not be used as a pretext to undermine established agreements without justifiable cause. As a result of this decision, the Downer EDI Mining Boggabri Enterprise Agreement 2017 remains in effect, and the union's rights and obligations under the agreement continue to apply.

Downer EDI Mining Pty Ltd T/A Downer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established