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[37]
austlii:cth/FWCA/2025/3732
General information, not legal advice.
FWCA
2025-11-06
Original judgment source is linked above.
DOWNER EDI WORKS PTY LTD WA ROAD MAINTENANCE AGREEMENT 2023
Application for termination of the Downer EDI Works Pty Ltd WA Road Maintenance Agreement 2023
[1] Downer EDI Works Pty Ltd ('Downer') has made an application ('Application') pursuant to s.225 of the Fair Work Act 2009 (Cth) (the 'Act') to terminate the Downer EDI Works Pty Ltd WA Road Maintenance Agreement 2023 ('Agreement'). A form F24C - Declaration in relation to termination of an enterprise agreement after the nominal expiry date ('Declaration') was filed in support of the Application.
[2] The Agreement is a single enterprise agreement and was approved by Commissioner Platt on 1 March 2023.[1]
[3] The Agreement has a nominal expiry date of 4 May 2025.
[4] The relevant provisions of the Act are as follows:
"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 the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(c) an employee organisation covered by the agreement.
226 Terminating an enterprise agreement after its nominal expiry date
(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment - each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection
(1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement."
Is the Applicant an employer covered by the Agreement?
[5] I am satisfied, based on the Declaration, that Downer is an employer covered by the Agreement and has standing to make the Application.
Has the Agreement passed its nominal expiry date?
[6] Clause 3 of the Agreement provides that the Agreement will continue to have effect after its nominal life unless it is cancelled or replaced according to the applicable law at the time. The nominal expiry date of the Agreement is 4 May 2025.
[7] Having considered the materials before the Commission and Clause 3 of the Agreement, I find that the Agreement has passed its nominal expiry date.
Section 226(1)(b) - does the Agreement cover any employees and is it likely to?
[8] Downer has declared that the Agreement does not, and is not likely to, cover any employees. This was declared again in a statutory declaration made by Ms Laura Gordon, the Manager of Industrial Relations of Downer on 20 October 2025 (Statutory Declaration). I am satisfied based on the statements in the Declaration and the Statutory Declaration that the Agreement does not, and is not likely to, cover any employees.
Section 226(3) - views of employees, each employer and each employee organisation covered by the agreement
[9] The Commission issued directions requiring:
That the Applicant provide a copy of these directions to the employees and employee organisations covered by the Agreement, together with any documents relevant to the application, including but not limited to the application documents and the Agreement;
That the Applicant post a notice in the following terms on all notice boards used to communicate with employees covered by the Agreement:
[10] These directions included a note which explained the provisions regulating the matters that govern the Commission's consideration of the Application. The directions directed that any employee, who was covered by the Agreement, and/or employee organisations who wished to oppose the application to terminate the Agreement, or make a submission in relation to the application, to do so by 5:00PM on Thursday, 30 October 2025. On 20 October 2025, Downer filed the Statutory Declaration confirming compliance with the directions, noting that it could not take any action under paragraphs 1 or 2 of the Directions, as no employees were covered by the Agreement, and that it had brought the matter to the attention of the Australian Workers' Union ('AWU').
[11] As per [8], it is declared in the Declaration that there are no employees covered by the Agreement.
[12] No employee organisation, employee or employer covered by the Agreement raised any objections in relation to the application (noting that based on the Declaration, there are no employees covered by the Agreement). The AWU advised the Commission on 22 October 2025 that it did not oppose the application made by Downer, and did not intend on filing notice or submissions opposing the orders sought.
[13] The Declaration included a declaration that the process for making a new enterprise agreement has not started. I am satisfied that none of the circumstances described in s.226(4) apply to the Application.
[14] I have not identified any other relevant matter to consider in determining the Application.
[15] Section 226(1A) provides that the Commission must terminate the enterprise agreement under subsection 226(1) only if the Commission is satisfied that it is appropriate in all the circumstances to do so.
[16] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that the Agreement does not, and is not likely to, cover any employees and that it is appropriate to terminate the Agreement having regard to all the circumstances.
[17] Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 6 November 2025.
[18] An Order to this effect has been issued concurrently with this decision.[2]
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