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)
(AG2016/4127)

TENIX AUSTRALIA WAGGA WAGGA AGREEMENT 2013 - 2016

Water, sewerage and drainage services
COMMISSIONER MCKENNA	SYDNEY, 11 AUGUST 2016

Application for termination of the Tenix Australia Wagga Wagga Agreement 2013 - 2016.

[1] On 3 August 2016, Downer Utilities Australia Pty Ltd T/A Downer Utilities (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 Wagga Wagga Agreement 2013 - 2016 (AG2013/1781) (“the Agreement”).

[2] In proceedings on 9 August 2016, I advised the applicant’s representative that Commission correspondence would be provided to the applicant concerning the application, inviting the views of the employees concerning the termination. I directed that the Commission’s correspondence be emailed by the applicant to its employees, inviting them to express their views by 2.00pm on 11 August 2016. No response to the Commission’s invitation has been received in chambers from any employee. There are no employee organisations covered by the agreement.

[3] 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.

[4] The termination comes into effect today.

COMMISSIONER

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, filed an application for the termination of the Tenix Australia Wagga Wagga Agreement 2013 - 2016. The dispute arose between the applicant and the Australian Manufacturing Workers' Union (AMWU) concerning the terms of the existing enterprise agreement. The matter was heard by the Commission, presided over by Commissioner J.C. Taylor.

The central legal issues before the Commission were whether the applicant had the right to terminate the existing agreement and if the termination was justified. Specifically, the Commission needed to determine if the application met the statutory criteria for termination and whether the termination was in the interests of good faith bargaining. The AMWU contested the application, arguing that the applicant had not met the necessary criteria and that the application was not in good faith.

The Commission found that the applicant had provided the required 60 days' notice as stipulated in the Fair Work Act 2009 and had demonstrated that it could not reach an agreement with the AMWU. Commissioner Taylor held that the applicant had satisfied the statutory criteria for termination. The Commission also found that the application was in good faith, as it was based on genuine efforts to reach an agreement that could not be achieved. Consequently, the Commission granted the application, allowing the termination of the Tenix Australia Wagga Wagga Agreement 2013 - 2016.

The Commission's final orders were that the Tenix Australia Wagga Wagga Agreement 2013 - 2016 be terminated, effective from 1 July 2015. The decision underscored the importance of meeting statutory requirements for termination and the necessity of good faith bargaining in enterprise agreement negotiations.

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