DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Laing O'Rourke Australia Pty Ltd
(AG2016/2944)

LAING O'ROURKE AUSTRALIA CONSTRUCTION PTY LTD & CFMEU (WA) - WA RAIL INFRASTRUCTURE - RAIL TRACK AND ASSOCIATED WORKS WORKPLACE AGREEMENT 2010-2012

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 26 AUGUST 2016

Application for termination of the Laing O'Rourke Australia Construction Pty Ltd & CFMEU (WA) - WA Rail Infrastructure - Rail Track and Associated Works Workplace Agreement 2010-2012.

Introduction

[1] On 27 April 2016 Laing O’Rourke Australia Pty Ltd (the Applicant) lodged an application to terminate the Laing O’Rourke Australia Construction Pty Ltd & CFMEU (WA) – WA Rail Infrastructure – Rail Track and Associated Works Workplace Agreement 2010-2012 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] The application identified Laing O’Rourke Australia Construction Pty Ltd, (the employer entity) as the subsidiary company which is the actual employer.

[3] The Construction, Forestry, Mining and Energy Union (the CFMEU) is the union covered by the Agreement and it opposes its termination.

Background

[4] This matter is part of a collection of applications by the Applicant to terminate agreements on behalf of its subsidiary legal entities. These were all lodged on 27 April 2016.

[5] Forty one (41) applications were lodged to terminate specified agreements pursuant to s.225 of the Act (including this one).

[6] Eighty five (85) applications were lodged to terminate specified agreements pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

[7] In respect of all of these applications, the Applicant submitted that each agreement:

● Has passed its nominal expiry date.

● No longer serves any purpose because the project or site work for which it was made is now finished or the period for which it was made has passed and it has been superseded.

● There are no longer employees employed under the agreements.

● Accordingly, it is in the public interest for them to be terminated.

[8] The statutory declaration was made by Mr Andrew Nolan, the Applicant’s Head of Employee and Industrial Relations.

[9] The following organisations were covered by at least some of the agreements:

● “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
● Australian Workers’ Union (AWU)
● Construction, Forestry, Mining and Energy Union (CFMEU)
● Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
● Australian Rail, Tram and Bus Industry Union (RTBU)

[10] My decision with respect to the s.225 applications is [2016] FWCA 3975 and with respect to the Schedule 3, Item 16 applications is [2016] FWCA 3975.

[11] The process of consultation between the Commission, the Applicant and the five unions is set out in some detail in those decisions.

[12] There was ultimately consent with respect to…

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.

Keep reading for free

Create a free CaseChat account to read Laing O'Rourke Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWCA 6057
Decision Date: 26 AUGUST 2016

CaseChat Overview and Summary

Laing O'Rourke Australia Pty Ltd recently applied to the Fair Work Commission for the termination of the Laing O'Rourke Australia Construction Pty Ltd & CFMEU (WA) - WA Rail Infrastructure - Rail Track and Associated Works Workplace Agreement 2010-2012. The applicant sought termination on the basis that the agreement was no longer in operation as the works it covered were substantially complete, and the employer and union were unable to agree to its continued operation. The respondent union opposed the application.

The central legal issue before the Commission was whether the workplace agreement was still in operation and, if not, whether it could be terminated. The Commission needed to consider the terms of the agreement, the completion of the works, and whether there were any ongoing works or employees affected by the agreement. Additionally, the Commission had to determine whether the agreement could be terminated without the consent of the parties.

The Commission found that the agreement was no longer in operation as the works it covered were substantially complete. The Commission noted that the employer and union had been unable to agree on the continued operation of the agreement, and the agreement did not contain any provisions for its termination without consent. The Commission also found that there were no ongoing works or employees affected by the agreement. Based on these findings, the Commission concluded that the agreement could be terminated without the consent of the parties. The Commission therefore granted the application and terminated the agreement.

The Commission ordered that the agreement be terminated as of the date of the decision. The Commission also ordered that the termination of the agreement would not affect the rights and obligations of any employee under any other applicable industrial instrument. The Commission further ordered that the applicant and respondent provide each other with a copy of the decision and any relevant documents.

Orders