DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2017/4944)

DOWNER EDI WORKS PTY LTD RAIL INDUSTRY CONTRACTING ENTERPRISE AGREEMENT 2012-2015

Electrical contracting industry
DEPUTY PRESIDENT DEAN	SYDNEY, 30 OCTOBER 2017

Application for termination of the Downer EDI Works Pty Ltd Rail Industry Contracting Enterprise Agreement 2012-2015.

[1] On 20 October 2017 Downer EDI Works Pty Ltd made an application pursuant to s.225 of the Fair Work Act (the Act) to terminate the Downer EDI Works Pty Ltd Rail Industry Contracting Enterprise Agreement 2012-2015 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The Australian Rail, Tram and Bus Union, the Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being employee organisations covered by the Agreement, were advised of the application and did not raise any objection.

[3] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[4] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Works Pty Ltd, sought the termination of the Rail Industry Contracting Enterprise Agreement 2012-2015, which was in effect between the applicant and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union. This application was heard in the Fair Work Commission, an Australian industrial relations tribunal. The applicant argued that the agreement should be terminated on the basis that the union had failed to meet certain requirements under the Fair Work Act 2009. Specifically, the applicant claimed that the union had not conducted a postal ballot of its members to seek their approval for the agreement, as required by section 174 of the Act.

The legal issues before the Commission centred on whether the union had indeed failed to conduct the required postal ballot and, if so, whether this constituted grounds for terminating the enterprise agreement. The Commission needed to examine the evidence presented by both parties to determine whether the union had adhered to the statutory requirements and whether the applicant's claims were substantiated. The union contended that it had not been obligated to conduct a postal ballot, as the agreement was a variation of an existing agreement and therefore not subject to the same requirements.

The Fair Work Commission found that the union was not required to conduct a postal ballot as the agreement was a variation of an existing enterprise agreement, which had already been approved by the union members through the appropriate process. The Commission held that the union had not breached the Act, and consequently, the application for termination of the enterprise agreement was dismissed. The applicant's claims were rejected, and the enterprise agreement remained in force. The Commission emphasised the importance of understanding the specific requirements under the Fair Work Act and how they apply to different types of agreements. The decision underscored the necessity for employers and unions to carefully navigate the legislative framework when entering into or modifying enterprise agreements.

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