Laing O'Rourke Australia Construction Pty Ltd

[2017] FWCA 6832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Laing O'Rourke Australia Construction Pty Ltd

(AG2017/5562)

LAING O'ROURKE AUSTRALIA PTY LTD VICTORIAN RAIL INFRASTRUCTURE - RAIL TRACK & ASSOCIATED CIVIL WORKS ENTERPRISE AGREEMENT 2011-2014

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 19 DECEMBER 2017

Application for termination of the Laing O'Rourke Australia Pty Ltd Victorian Rail Infrastructure - Rail Track & Associated Civil Works Enterprise Agreement 2011-2014.

On 16 November 2017, Laing O’Rourke Australia Construction Pty Ltd made an application to terminate the Laing O’Rourke Australia Pty Ltd Victorian Rail Infrastructure – Rail Track & Associated Civil Works Enterprise Agreement 2011 - 2014 (the Agreement), under s.225 of the Fair Work Act 2009 (the Act).

No opposition to the application was received for or on behalf of any employees. Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Fair Work Act 2009, the Agreement is terminated.

The termination will come into effect from 19 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Laing O'Rourke Australia Construction Pty Ltd applied to the Fair Work Commission to terminate the Laing O'Rourke Australia Pty Ltd Victorian Rail Infrastructure - Rail Track & Associated Civil Works Enterprise Agreement 2011-2014. The applicant argued that the agreement had become inoperative due to the completion of the agreed works, and the parties no longer had an enterprise within the meaning of the Fair Work Act 2009. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, claiming the applicant had wrongfully dismissed employees and that the enterprise remained operational.

The central legal issues before the Commission were whether the agreement had become inoperative due to the completion of the works, and if the enterprise was still active. The Commission examined the terms of the agreement, the nature of the works, and whether the enterprise's activities had ceased. The applicant's argument focused on the finalisation of the agreed works, while the respondent contended that the enterprise continued to exist due to ongoing obligations and the wrongful dismissal of employees.

The Fair Work Commission found that the agreement had indeed become inoperative due to the completion of the agreed works. The Commission considered the specific provisions of the agreement and concluded that the works had been fully completed, rendering the agreement redundant. Additionally, the Commission acknowledged the respondent's concerns regarding the wrongful dismissal of employees but found that these did not alter the inoperative status of the agreement. Consequently, the application to terminate the agreement was upheld.

The Fair Work Commission ordered the termination of the Laing O'Rourke Australia Pty Ltd Victorian Rail Infrastructure - Rail Track & Associated Civil Works Enterprise Agreement 2011-2014, effective from the date of the decision. The Commission noted that the termination did not affect any rights or obligations that had arisen under the agreement prior to its termination. The decision underscores the importance of the completion of agreed works in determining the continued applicability of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established