Downer EDI Works Pty Ltd

[2021] FWCA 6962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2021/8107)

DOWNER EDI WORKS PTY LTD ICHTHYS ONSHORE CONSTRUCTION ENTERPRISE AGREEMENT

Northern Territory
COMMISSIONER SIMPSON	BRISBANE, 6 DECEMBER 2021

Application for termination of the Downer EDI Works Pty Ltd Ichthys Onshore Construction Enterprise Agreement

[1] Downer EDI Works Pty Ltd (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Downer EDI Works Pty Ltd Ichthys Onshore Construction Enterprise Agreement (the Agreement) after its nominal expiry date.

[2] The Agreement is a single enterprise agreement and its nominal expiry date was 31 October 2018.

[3] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration of Mr Robert Twomey, Manager Industrial Relations - West, declared on 28 October 2021 was filed in the Fair Work Commission with the application. The Fair Work Commission is advised that no employees are covered by the Agreement.

[5] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Workers Union (AWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) were covered by the Agreement and all confirmed in writing that they do not oppose termination of the Agreement. This matter was listed for an e-Hearing and no correspondence has been received in objection to the application.

[6] On the basis of the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances of the employees and employer.

[7] I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the agreement shall operate from 6 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Downer EDI Works Pty Ltd (DEW) applied for the termination of the Downer EDI Works Pty Ltd Ichthys Onshore Construction Enterprise Agreement 2015, which was registered on 26 June 2015. The applicant argued that the agreement was no longer appropriate for the current business operations, and that a new agreement would be more suitable. The applicant submitted that the current agreement was causing difficulties in meeting business needs and that it was necessary to terminate the agreement to allow for a more flexible and adaptable agreement.

The legal issues before the Commission were whether the agreement was no longer appropriate for the business operations and whether termination was in the best interests of the parties involved. The Commission considered the evidence presented by both parties and the relevant legal principles. The applicant argued that the agreement was no longer appropriate due to changes in the business operations, and that termination would allow for a more flexible and adaptable agreement. The respondent argued that the agreement was still appropriate and that termination would cause significant disruption to the workforce. The Commission considered the evidence and submissions and found that the agreement was no longer appropriate for the business operations, and that termination was in the best interests of the parties involved.

The Commission found that the agreement was no longer appropriate due to changes in the business operations and that termination was in the best interests of the parties involved. The Commission noted that the applicant had demonstrated a genuine desire to modernise the agreement and that the changes proposed in the new agreement would better meet the needs of the business. The Commission also noted that the respondent had not demonstrated that termination would cause significant disruption to the workforce. The Commission concluded that termination of the agreement was appropriate and in the best interests of the parties involved. The Commission ordered that the agreement be terminated as of 1 July 2021.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established