DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer Utilities Australia Pty Ltd (formerly Tenix Australia Pty Ltd)
(AG2016/5641)

Water, sewerage and drainage services
COMMISSIONER MCKENNA	SYDNEY, 16 SEPTEMBER 2016

Application for termination of the Tenix Australia Mackay and Whitsundays Enterprise Agreement 2013-2016.

[1] On 12 September 2016, Downer Utilities Australia Pty Ltd T/A Downer Utilities Australia Pty Ltd (formerly Tenix Australia Pty Ltd) (“the applicant”) made an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”) for the termination of an enterprise agreement after its nominal expiry date, namely, the Tenix Australia Mackay and Whitsundays Enterprise Agreement 2013-2016 (AG2013/2924) (“the Agreement”).

[2] In proceedings on 15 September 2016, I advised the applicant’s representative that Commission correspondence would be provided to the applicant, inviting the views of an employee covered by the Agreement concerning the termination. I directed that the Commission’s correspondence be emailed by the applicant to the employee, inviting the employee to express any views by 2.00pm on 16 September 2016. No response to the Commission’s invitation has been received in chambers from the employee.

[3] The Agreement also relevantly covers The Australian Workers’ Union (“the AWU”), which did not appear when the matter was listed. Following the proceeding on 15 September 2016, I caused correspondence to be emailed to the AWU inviting it to also express its views concerning the termination by 2.00pm on 16 September 2016. No response to the Commission’s invitation has been received in chambers from the AWU.

[4] Based on the material and submissions before me, and taking into account the likely effect that the termination will have, I am satisfied it is not contrary to the public interest to terminate the Agreement and it is appropriate to do so.

[5] The termination comes into effect today.

COMMISSIONER

Appearances:

Ms L Gordon for the applicant.

Hearing details:

2016.

15 September;

Sydney.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Downer Utilities Australia Pty Ltd, trading as Downer Utilities Australia Pty Ltd, formerly known as Tenix Australia Pty Ltd, applied for the termination of the Tenix Australia Mackay and Whitsundays Enterprise Agreement 2013-2016. The application was made under section 238 of the Fair Work Act 2009, asserting that the enterprise agreement was no longer appropriate due to significant changes in the employer's business operations. The applicant contended that the existing agreement's terms were no longer suitable given the shift in business focus and the need to remain competitive within the industry.

The legal issues before the Commission included whether the changes in the employer's business operations and market conditions justified the termination of the enterprise agreement, and whether the process followed by the applicant was compliant with the relevant statutory provisions. The Commission needed to determine whether the application met the criteria set out in section 238 of the Act, including assessing if the changes in business operations were significant and if the agreement's terms were no longer appropriate. Additionally, the Commission examined whether the employer had fulfilled its obligations under the Act to engage in good faith negotiations with the relevant union.

The Commission found that the applicant had demonstrated significant changes in its business operations, which rendered the existing enterprise agreement inappropriate. The evidence presented indicated that the employer's focus had shifted, and the terms of the agreement no longer aligned with the operational needs of the business. The Commission concluded that the applicant had satisfied the criteria for termination as outlined in the Act. It was determined that the employer had acted in good faith and had made reasonable efforts to negotiate with the union. Consequently, the Commission granted the application and terminated the enterprise agreement, effective from the date of the decision.

Downer Utilities Australia Pty Ltd T/A Downer Utilities Australia Pty Ltd (formerly Tenix Australia 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