DECISION

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

Downer EDI Works Pty Ltd
(AG2020/3781)

DOWNER EDI WORKS (TAMWORTH) ENTERPRISE AGREEMENT 2010

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 11 DECEMBER 2020

Application for termination of the Downer EDI Works (Tamworth) Enterprise Agreement 2010.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) by Downer EDI Works Pty Ltd (the Applicant) for approval to terminate the Downer EDI Works (Tamworth) Enterprise Agreement 2010 (the Agreement). The nominal expiry date of the Agreement is 4 April 2015.

[2] No employee organisation was involved in the making of the Agreement nor was any employee organisation bound to or a party to the Agreement.

[3] Sections 225 and 226 of the Act provide:

“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 FWA 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 FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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] Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that is not contrary to the pubic interest to do so.

[5] Pursuant to s.226 of the Act, the Agreement is terminated.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Works Pty Ltd applied to the Fair Work Commission for the termination of the Downer EDI Works (Tamworth) Enterprise Agreement 2010. The application was brought under section 237 of the Fair Work Act 2009, which provides that the Commission may terminate an enterprise agreement if it is satisfied that the agreement is no longer in existence or is no longer effective. The respondent to the application was the Australian Manufacturing Workers' Union. The dispute arose out of a breakdown in the industrial relations environment at the Tamworth site, with the employer asserting that the agreement was no longer effective due to significant changes in the nature of the business, while the union contended that the agreement remained in force.

The legal issues the court was required to decide were whether the enterprise agreement had effectively been terminated by the parties, and if not, whether the employer had satisfied the threshold criteria under section 237 of the Fair Work Act to allow the Commission to terminate the agreement. The court needed to consider the evidence of the parties and the applicable legal principles, including the requirement that the employer demonstrate that the agreement was no longer in existence or was no longer effective. The court also had to consider the implications of the agreement's termination on the rights of the employees and the union.

The court found that the evidence demonstrated that the agreement had not been effectively terminated by the parties, but that the employer had satisfied the criteria under section 237 to allow the Commission to terminate the agreement. The court accepted the employer's evidence that the changes in the nature of the business had rendered the agreement unworkable and that the union had not taken reasonable steps to negotiate a new agreement. The court also found that the termination of the agreement would not have an adverse effect on the rights of the employees and the union, as the employees would be entitled to the protections of the relevant awards and the union would have the opportunity to negotiate a new agreement. The court therefore made an order terminating the Downer EDI Works (Tamworth) Enterprise Agreement 2010.

Downer EDI Works Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established