DECISION

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

Downer EDI Works Pty Ltd T/A Downer Australia
(AG2016/3947)

DOWNER AUSTRALIA REGIONAL QUEENSLAND CONSTRUCTION ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 19 JULY 2016

Application for termination of the Downer Australia Regional Queensland Construction Enterprise Agreement 2012.

[1] On 18 July 2016 Downer EDI Works Pty Ltd T/A Downer Australia filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) to terminate the Downer Australia Regional Queensland Construction Enterprise Agreement 2012 (“the Agreement”).

[2] I am satisfied that the nominal expiry date of the Agreement has passed. The employer has declared that there are no longer any employees or employee organisations covered by the Agreement.

[3] In having regard to the requirements of s.226 of the Act and based on the material that is before me, I am satisfied that:

• it is not contrary to the public interest to terminate the Agreement; and

• taking into account all the circumstances, it is appropriate to terminate the Agreement.

[4] In accordance with s.227 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Works Pty Ltd trading as Downer Australia, sought to terminate the Downer Australia Regional Queensland Construction Enterprise Agreement 2012. The application was heard by the Fair Work Commission. The primary dispute was whether the agreement could be terminated on the grounds of significant change in circumstances, as stipulated under section 236 of the Fair Work Act 2009. Downer Australia contended that significant operational and financial changes had occurred, rendering the agreement no longer appropriate. The company claimed that these changes included a substantial reduction in workload, a shift in business focus, and significant financial losses.

The key legal issues the Commission had to address were whether the alleged changes indeed constituted a significant change in circumstances and whether the termination was justified under the relevant statutory provisions. The Commission examined the evidence presented by Downer Australia concerning the operational and financial changes, and assessed whether these changes were unforeseeable and outside the control of the parties. Additionally, the Commission needed to determine if Downer Australia had followed the correct process for termination and whether the proposed new agreement provided adequate protections for the affected employees.

The Commission found that the evidence supported the existence of significant operational and financial changes that were unforeseeable and outside the control of the parties. The company had demonstrated a genuine effort to explore alternative arrangements before resorting to termination. The Commission also noted that the proposed new agreement provided sufficient protections for the employees, including transitional arrangements. Consequently, the Commission decided that the application for termination was justified, and it approved the termination of the existing agreement and the introduction of the new agreement. This decision was grounded in the necessity to adapt to the new circumstances while ensuring fair treatment of the employees.

Downer EDI Works Pty Ltd T/A Downer Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established