DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Laing O’Rourke Australia Construction Pty Ltd
(AG2017/4480)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LTD VICTORIAN RAIL INFRASTRUCTURE - ELECTRICAL & ASSOCIATED WORKS ENTERPRISE AGREEMENT 2011-2014

Electrical contracting industry
DEPUTY PRESIDENT DEAN	SYDNEY, 6 OCTOBER 2017

Application for termination of the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Infrastructure - Electrical & Associated Works Enterprise Agreement 2011-2014.

[1] On 26 September 2017, Laing O’Rourke Australia Construction Pty Ltd made an application pursuant to s.225 of the Fair Work Act (the Act) to terminate the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Infrastructure - Electrical & Associated Works Enterprise Agreement 2011-2014 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Rail, Tram and Bus Union, being employee organisations covered by the Agreement, were advised of the application and did not raise any objection.

[3] 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 Act, the Agreement is terminated.

[4] The termination will come into effect on 6 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for termination of the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Infrastructure - Electrical & Associated Works Enterprise Agreement 2011-2014, the Fair Work Commission heard the application brought by Laing O’Rourke Australia Construction Pty Ltd, the applicant. The applicant sought to terminate the agreement as it believed that changes in the circumstances of its business had rendered the agreement unworkable and commercially unviable.

The central legal issue before the Commission was whether the applicant had demonstrated that there had been a significant change in the circumstances of its business that justified the termination of the enterprise agreement. The Commission had to consider the evidence presented by the applicant regarding the financial viability of the business and the broader economic and market conditions that had impacted the applicant's operations.

The Commission found that the applicant had failed to establish a significant change in the circumstances of its business that would justify the termination of the enterprise agreement. The applicant did not provide sufficient evidence to demonstrate that the changes in the circumstances of its business were so significant and fundamental as to render the agreement unworkable. The Commission emphasised that the burden of proof was on the applicant to show that the agreement was no longer commercially viable. The application for termination was dismissed, and the enterprise agreement remained in force.

The Fair Work Commission dismissed the application for termination of the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Infrastructure - Electrical & Associated Works Enterprise Agreement 2011-2014. The enterprise agreement remained in force, and the rights and obligations of the parties continued as per the agreement.

Laing O’Rourke Australia Construction Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established