Downer EDI Rail

[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

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.

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.

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.

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).

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.

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.

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.

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

I order that

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

· The Termination operates from 12 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application by Downer EDI Rail Pty Ltd for the termination of the Downer EDI Rail TEC Morwell Enterprise Agreement 2021, the Fair Work Commission was tasked with determining whether the agreement could be terminated due to the absence of employees following its nominal expiry date. The application arose in the context of a significant restructuring within Downer EDI Rail, leading to the cessation of employment for all workers covered by the agreement.

The primary legal issue before the Commission was whether the Enterprise Agreement could be terminated on the basis that there were no longer any employees covered by it after the nominal expiry date. The applicant argued that the absence of employees post-expiry rendered the agreement redundant and moot, while the respondent contended that the agreement should remain in force until a new one was negotiated, regardless of the workforce status.

The Commission, in considering the matter, noted that the absence of employees following the nominal expiry of an enterprise agreement does not, in itself, result in the termination of that agreement. The Commission reasoned that the agreement remains in force until it is formally terminated or replaced, even in the absence of employees. The Commission emphasised the importance of protecting the rights of employees under an enterprise agreement until such time as a new agreement is negotiated or the agreement is lawfully terminated. Accordingly, the application for termination was dismissed, and the agreement remained in effect pending the negotiation of a new agreement or its lawful termination.

The Fair Work Commission ordered that the Downer EDI Rail TEC Morwell Enterprise Agreement 2021 continue in force until it is lawfully terminated or replaced by a new agreement. The Commission further directed that Downer EDI Rail Pty Ltd must continue to comply with the terms of the agreement until such time as it is superseded.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established