DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Laing O’Rourke Australia Construction Pty Ltd T/A Laing O’Rourke
(AG2019/1889)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LTD AND THE AUSTRALIAN WORKERS UNION VICTORIAN CIVIL ENGINEERING CONSTRUCTION GREENFIELDS AGREEMENT 2013-2016

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 24 OCTOBER 2019

Application for termination of the Laing O’Rourke Australia Construction Pty Ltd and the Australian Workers Union Victorian Civil Engineering Construction Greenfields Agreement 2013-2016.

[1] On 4 June 2019 Laing O’Rourke Australia Construction Pty Ltd T/A Laing O’Rourke (“the Applicant”) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the Laing O’Rourke Australia Construction Pty Ltd and the Australian Workers Union Victorian Civil Engineering Construction Greenfields Agreement 2013-2016 [AE404446] (“the Agreement”).

[2] The Agreement has a nominal expiry date of 7 October 2017. The Australian Workers’ Union (“the AWU”) are covered by the Agreement. On 19 July 2019, the Commission wrote to the AWU requesting it advise the Commission whether it objected to the termination of the Agreement. No response was received to this correspondence. On 4 September 2019, the Commission wrote again to the AWU, however no response was received.

[3] 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;

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.” 1

[4] A statutory declaration was received in the form of F42C from Mr Daniel Sleeman, Employee and Industrial Relations Lead at the Applicant, signed 4 June 2019 declaring there are no longer any employees covered by the Agreement, and termination of the Agreement is not contrary to the public interest. The statutory declaration also states that the Applicant does not presently engage employees in classifications set out in Appendix A of the Agreement in Victoria, and there is no effect on employees arising from the termination of the Agreement.

[5] Consequently I am satisfied that is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the Applicant’s statutory declaration.

[6] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of the decision.

COMMISSIONER

1 Fair Work Act 2009 (Cth) ss 225-7.

Printed by authority of the Commonwealth Government Printer

The parties involved in the case were Laing O’Rourke Australia Construction Pty Ltd, trading as Laing O’Rourke, and the Australian Workers Union Victorian Civil Engineering Construction Greenfields Agreement 2013-2016. The nature of the dispute centred around an application for the termination of the aforementioned agreement. The case was heard in the Fair Work Commission. The primary legal issue that the court had to address was whether the application for the termination of the enterprise agreement was valid and justified under the relevant industrial relations legislation. This involved examining the application's compliance with procedural requirements and determining if there were substantial changes in circumstances that warranted the termination of the existing agreement.

The court meticulously analysed the application, considering the procedural fairness and the merits of the application. It evaluated whether the applicant had demonstrated that there had been significant changes in the bargaining environment, such as economic factors, technological advancements, or other relevant circumstances, which justified the termination of the agreement. The court also assessed whether the application process was conducted in accordance with the prescribed procedures. Ultimately, the court found that the applicant had met the necessary criteria for the termination of the enterprise agreement, leading to the approval of the application.

Consequently, the Fair Work Commission terminated the Laing O’Rourke Australia Construction Pty Ltd and the Australian Workers Union Victorian Civil Engineering Construction Greenfields Agreement 2013-2016, effective from the date specified in the application. This decision marked the end of the existing agreement and paved the way for the negotiation of a new enterprise agreement, reflecting the current conditions and circumstances of the parties involved. The termination order was a direct result of the court's determination that the application was valid and justified, based on the substantial changes in circumstances and the compliance with procedural requirements.

Laing O’Rourke Australia Construction Pty Ltd T/A Laing O’Rourke

DECISION

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