Downer EDI Rail

[2024] FWCA 4454

[2024] FWCA 4454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Downer EDI Rail

(AG2024/4625)

DOWNER EDI RAIL TEC MORWELL ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 12 DECEMBER 2024

Application for termination of the Downer EDI Rail TEC Morwell Enterprise Agreement 2021 - No employees – After nominal expiry date – Agreement terminated

1. Downer EDI Rail Pty Ltd has applied to terminate the Downer EDI Rail TEC Morwell Enterprise Agreement 2021 under s 225 of the Fair Work Act 2009.

1. The Agreement was approved by the Commission on 6 October 2021 and commenced operation on 13 October 2021. Its nominal expiry date was 23 August 2024.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) are covered by the Agreement.

1. Under s 226 of the Act, the Commission must terminate an agreement after its nominal expiry date if satisfied of one of 3 alternative grounds in s 226(1) and the Commission is satisfied that it is appropriate in all the circumstances to do so under s 226(1A).

1. EDI Downer Rail relies only on the grounds in s 226(1)(b) – that the Agreement does not and is not likely to cover any employees.

1. My chambers wrote to the parties on 29 November 2024 to provide the unions with an opportunity to provide their views about terminating the Agreement. The AMWU informed my chambers that it did not object to Agreement being terminated, and confirmed that there were no employees covered by the Agreement. The ETU did not reply.

1. I have had regard to the matters under s 226(4) and am satisfied that no bargaining for a proposed agreement has commenced. No other relevant matters were brought to my attention.

1. I am satisfied by the material filed by EDI Downer Rail and AMWU’s reply that it is appropriate in all the circumstances to terminate the Agreement because the Agreement does not cover any employees. So, I terminate the Agreement. The termination operates from 7 November 2024.

Order

1. I order that

·   The Downer EDI Rail TEC Morwell Enterprise Agreement 2021 is terminated; and

·   The Termination operates from 12 December 2024.

COMMISSIONER

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