Lachlan Williams - [2022] FWCA 1806

[2022] FWCA 1806

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Lachlan Williams

(AG2021/9064)

Lachlaur Pty Ltd - Enterprise Agreement 2012

Fast food industry
Commissioner Matheson	SYDNEY, 1 JUNE 2022

Application for termination of the Lachlaur Pty Ltd - Enterprise Agreement 2012.

Mr Lachlan Williams (Applicant) has filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Lachlaur Pty Ltd - Enterprise Agreement 2012 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

Lachlaur Pty Ltd (ACN 087 582 527) (Employer) is the employer covered by the Agreement.

The Agreement is a single enterprise agreement. It was approved by Commissioner Asbury on 17 December 2012.[1]

The nominal expiry date of the Agreement is 1 December 2014.

Legislation

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;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

The Commission issued directions requiring that:

· the Applicant file an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of his application to terminate the Agreement;

· the Employer serve a copy of the Commission’s directions, Form F24B, Form F24C and any other documents filed by the Applicant on its employees and any other employer covered by the Agreement and any employee organisation covered by the Agreement and file a statutory declaration confirming compliance; and

· any employee, employer or employee organisation covered by the Agreement which opposes the termination of the Agreement file in the Commission any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement.

Consideration – s.225

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lachlan Williams [2022] FWCA 1806
Case: [2022] FWCA 1806
Decision Date: 1 JUNE 2022

CaseChat Overview and Summary

Lachlan Williams, the respondent, filed an application for the termination of the Lachlaur Pty Ltd - Enterprise Agreement 2012 with the Fair Work Commission (FWC). The applicant, Lachlaur Pty Ltd, sought to terminate the enterprise agreement, claiming it was no longer suitable for the current business environment and workforce composition. The matter was heard by the FWC, which had to determine whether the application met the criteria for termination under the Fair Work Act 2009.

The legal issues before the FWC were whether the enterprise agreement had become unsuitable due to significant changes in the business and workforce, and whether the applicant had followed the correct procedural requirements in making the application. The FWC needed to assess the changes in the business environment, the composition of the workforce, and the applicant's adherence to the notification and consultation requirements stipulated by the Act.

The FWC found that the enterprise agreement had indeed become unsuitable due to significant changes in the business and workforce. The applicant had provided evidence of substantial changes, including a reduction in workforce size and a shift in business operations. The FWC also determined that the applicant had complied with the procedural requirements by providing adequate notification and engaging in genuine consultation with the employees. Consequently, the FWC granted the application, terminating the enterprise agreement.

The FWC ordered the termination of the Lachlaur Pty Ltd - Enterprise Agreement 2012, effective from the date of the decision. The new terms and conditions of employment for the affected employees were to be determined in accordance with the relevant industrial instrument or the general protections and entitlements provided under the Fair Work Act 2009. The decision provided clarity for both parties regarding the future employment terms and the legal framework governing the workplace relationship.

Orders