Laing O’Rourke Australia Pty Ltd (AG2016/2933 – AG2016/2937) (AG2016/2939 – AG2016/2941)

[2016] FWCA 3896

[2016] FWCA 3896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Laing O’Rourke Australia Pty Ltd
(AG2016/2933 – AG2016/2937)

(AG2016/2939 – AG2016/2941)

(AG2016/2943)

(AG2016/2945 – AG2016/2946)

(AG2016/2951 – AG2016/2973)

LAING O’ROUKE AUSTRALIA CONSTRUCTION PTY LIMITED - RAIL GROUP NSW - GENERAL OPERATIONS JOINT ENTERPRISE AGREEMENT 2009-2012 AND OTHERS

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 21 JUNE 2016

Applications for termination of Laing O’Rourke Australia Pty Ltd agreements.

Introduction

[1] On 27 April 2016 Laing O’Rourke Australia Pty Ltd (the Applicant) lodged applications to terminate 41 specified agreements pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] The Applicant is the parent company of each of the legal entities which are the employers specified in the agreements.

[3] The Applicant submits that each agreement:

● Has passed its nominal expiry date.
● No longer serves any purpose because the construction project for which they were made is completed or the relevant agreement has been superseded by another instrument.
● Has no employees employed under them.

[4] The application specified that 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)



• The 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).

[5] On 27 April 2016 the Applicant also lodged applications to terminate 85 specified agreements pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Those are dealt with in a separate decision.

Legislative Provisions

[6] The Fair Work Commission (the Commission) must terminate an enterprise agreement when an application is made under s.225, where the requirements contained in s.226 are met.

[7] The relevant provisions are:

“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 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 FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

(a) FWC is satisfied that it is not contrary to the public interest to do so; and

(b) 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.”

Commission Proceedings

[8] The applications were accompanied by a Statutory Declaration by Andrew Nolan, the Applicant’s Head of Employee and Industrial Relations.

[9] Mr Nolan stated that:

● He was authorised to make the statement on behalf of the Applicant and its specified subsidiary companies.
● The Applicant was authorised to make the applications for the subsidiary companies.
● The matters in paragraph 3 above are correct.
● It is in the public interest for the agreements to be terminated.

[10] On 5 May 2016 I wrote to the unions listed in paragraph 4 above enclosing the application and the affidavit and requested advice as to any opposition to the proposed terminations by 13 May 2016.

[11] The following responses were made:

(a) The CEPU expressed opposition to the termination of the Laing O’Rourke Construction Pty Ltd Victorian Rail Infrastructure – Electrical & Associated Works Enterprise Agreement 2011 – 2014 [AG2016/2942]

(b) The RTBU expressed opposition to the termination of that Agreement also and to the Laing O’Rourke Australia Pty Ltd Victorian Rail Infrastructure - Rail Track & Associated Civil Works Enterprise Agreement 2011 – 2014. [AG2016/2938]

(c) The CFMEU expressed opposition to 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 WA Agreement”).

[12] A telephone conference of the Applicant and the four unions took place on 23 May 2016. It was agreed that those matters which were not opposed would be dealt with on the papers. The hearing of the unions’ objections was set down for 3 August 2016 with directions issued for the filing of submissions and evidence.

[13] A reminder letter was sent to the unions on 23 May 2016.

[14] In mid-May, the Applicant filed a notice of discontinuance with respect to four agreements, namely:

● Select Civil Pty Ltd /CFMEU Civil Construction Collective Agreement 2014 – 2016 [AG2016/2947]

● Select Cranes & Rigging Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 – 2015 [AG2016/2948]

● Select Cranes & Rigging Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011 – 2015 [AG2016/2949]

● SELECT CIVIL PTY LIMITED / CFMEU CIVIL CONSTRUCTION ENTERPRIPSE AGREEMENT 2009 – 2011 [AG2016/2950]

and as well the two Victorian Agreements referred to in paragraph 11 which had been the subject of the 3 August listing. At this time it would appear that only the “WA Agreement” referred to in paragraph 11(c) above will be dealt with at the hearing.

Conclusion

[15] As a result of the process described above, I am satisfied that it is not contrary to the public interest, and that it is appropriate in all the circumstances to terminate the agreements. Pursuant to s.226 of the Act, I must approve the termination of the agreements.

[16] To avoid any doubt I also exercise my power pursuant to s.586 of the Act to correct/amend the applications to make it clear that the specified legal entities who are the employers covered by the relevant agreements are the applicants. This is done on the application of the Applicant. It is clear that the Applicant is the parent company and had the authority to make the applications. Given the complex administrative task of processing so many applications, such an amendment is necessary.

[17] A schedule listing the agreements to be terminated is attached to this decision as Appendix “A”.

[18] An Order terminating the Agreements will be issued together with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR581622>

Annexure A

File Ref	Agreement Title	Employer party	Ag’mnt ID	Nominal expiry date
Ag2016/2933	Laing O’Rourke Australia Construction Pty Limited - Rail Group NSW - General Operations Joint Enterprise Agreement 2009-2012	Laing O’Rourke Australia Construction Pty Ltd (ABN 39 112 099 000)	AE874257	30/06/2012
AG2016/2934	Laing O’Rourke Trading As Select Plant Hire Employees Collective Agreement 2009 - 2011	Laing O’Rourke Australia Construction Pty Limited trading as Select Plant Hire	AC325703	30/06/2012
AG2016/2935	Laing O’Rourke Australia Construction Pty Ltd (ACN 39 112 099 000) T/A Select Plant Hire Enterprise Agreement (Queensland) 2011-2014	Laing O’Rourke Australia Construction Pty Ltd T/A Select Plant Hire	AE891599	31/12/2014
AG2016/2936	Laing O’Rourke Infrastructure South Joint Collective Agreement	Laing O’Rourke Australia Construction Pty Ltd	AC314426	28/11/2011
AG2016/2937	Laing O’Rourke/CFMEU Enterprise Agreement 2009 -2011 Building Group NSW	Laing O’Rourke Australia Construction Pty Ltd	AE877174	30/06/2011
AG2016/2939	Laing O’Rourke Services Enterprise Agreement 2010	Laing O’Rourke Australia Construction Pty Ltd	AE879245	1/04/2013
AG2016/2940	Laing O’Rourke Services Enterprise Agreement 2013	Laing O’Rourke Australia Construction Pty Ltd	AE402343	31/03/2016
AG2016/2941	Laing O’Rourke Australia Construction Pty Ltd Rail Infrastructure - Electrical & Associated Works Enterprise Agreement 2011-2014 - South Australia	Laing O’Rourke Australia Construction Pty Ltd	AE888922	30/06/2014

AG2016/2943	Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Infrastructure Enterprise Agreement - Electrical Works 2009-2010	Laing O’Rourke Australia Construction Pty Ltd	AE875136	Not known
AG2016/2945	Laing O’Rourke Australia Construction Pty Limited and CFMEU Building Group North Enterprise Agreement 2009-2011	Laing O’Rourke Australia Construction Pty Ltd	AE879486	30/06/2011
AG2016/2946	Laing O’Rourke Australia Construction Pty Limited, FMG Track Maintenance Enterprise Agreement 2012-2015	Laing O’Rourke Australia Construction Pty Ltd	AE895081	30/06/2015
AG2016/2951	The Laing O’Rourke Australia Construction Pty Ltd Gladstone LNG Project Greenfields Agreement 2009	Laing O’Rourke Australia Construction Pty Ltd	AE873622	30-Jun-13
AG2016/2952	Worsley Efficiency and Growth Project Laing O’Rourke Australia Construction Pty Ltd Electrical Trades Agreement 2009	Laing O’Rourke Australia Construction Pty Ltd	AE874285	17/06/2013
AG2016/2953	Worsley Efficiency and Growth Project Laing O’Rourke Australia Construction Pty Ltd Metal Trades Agreement 2009	Laing O’Rourke Australia Construction Pty Ltd	AE874022	18/06/2012
AG2016/2954	Bouygues Laing O’Rourke Joint Venture (BYLORJV) Northern Link Tunnel Greenfields Agreement 2010	Laing O’Rourke Australia Construction Pty Ltd	AE878625	26/05/2014
AG2016/2955	Laing O’Rourke CSG, and Associated Infrastructure Greenfields Agreement 2011-2015	Laing O’Rourke Australia Construction Pty Ltd	AE888017	31/6/2015
AG2016/2956	LAINGOROURKE & EMPLOYEES RAIL GROUP-WESTERN AUSTRALIA PILBARA REGION COLLECTIVE AGREEMENT 2007-2010	Laing O’Rourke Australia Construction Pty Ltd	AC309789	2010

AG2016/2957	Laing O’Rourke Goonyella Up Grade - Civil Works Project	Laing O’Rourke Australia Construction Pty Ltd	AC322518	31/12/2011
AG2016/2958	LaingO’Rourke Construction Australia Pty Ltd FMG Track Maintenance Employee Collective Agreement	Laing O’Rourke Australia Construction Pty Ltd	AC322280	2012
AG2016/2959	Laing O’Rourke Broadmeadow Sustaining Operations Project Union Greenfields Agreement	Laing O’Rourke Australia Construction Pty Ltd	AE890996	30/10/2015
AG2016/2960	Laing O’Rourke Brockman 4 Employers Greenfields Agreement 2009 - 2010	Laing O’Rourke Australia Construction Pty Ltd	AC318435	2010
AG2016/2961	Laing O’Rourke Australia Construction Pty Limited and Employees, Rail Group Western Australia - General Operations Pilbara Region Enterprise Agreement 2010-2014	Laing O’Rourke Australia Construction Pty Ltd	AE879915	31/07/2014
AG2016/2962	LAING O’ROURKE SERVICES PTY LTD COLLECTIVE AGREEMENT	Laing O’Rourke Services Pty Limited	AC310135	1/04/2010
AG2016/2963	Laing O’Rourke (Australia) Construction Pty Ltd Port Waratah Coal Services Kooragang Expansion Agreement 2010-2014	Laing O’Rourke (Australia) Construction Pty Ltd	AE878096	16/03/2014
AG2016/2964	Laing O’Rourke Australia Construction Pty Ltd Gladstone LNG and Associated Infrastructure Works Greenfields Agreement	Laing O’Rourke Australia Construction Pty Ltd	AE887917	12/09/2015
AG2016/2965	Laing O’Rourke Abbot Point Coal terminal Expansion Workplace Agreement 2009	Laing O’Rourke Australia Construction Pty Ltd	AC322798	31/06/2012

AG2016/2966	Laing O’Rourke Australia Building and Development Group North Northern Territory Collective Agreement	Laing O’Rourke Australia Construction Pty Ltd	AC317981	31/10/2011
AG2016/2967	Laing O’Rourke Australia Construction Pty Limited (ABN 39 112 099 000) Brown’s Oxide Project Upgrade Greenfields Agreement 2009	Laing O’Rourke Australia Construction Pty Ltd	AE875038	24/03/2011
AG2016/2968	Laing O’Rourke Australia Construction Pty Limited (ABN 39 112 099 000) Miscellaneous Minor Water Projects Greenfields Agreement 2009	Laing O’Rourke Australia Construction Pty Ltd	AE875037	24/03/2013
AG2016/2969	Laing O’Rourke Australia Construction Pty Limited (ABN 39 112 099 000) Townsville Marine Precinct Project (Civil Works) Greenfields Agreement 2010	Laing O’Rourke Australia Construction Pty Ltd	AE879304	30/06/2013
AG2016/2970	Redispan Conveyors Pty Ltd Tomago Workshop Collective Agreement 2009 - 2010	Redispan Conveyors Pty Limited (ABN 95 092 454 898)	AC318638	31/12/2010
AG2016/2971	Redispan Conveyors Tomago Workshop Enterprise Agreement 2011	Laing O’Rourke Australia Construction Pty Ltd	AE886735	31/12/2011
AG2016/2972	Redispan Conveyors Tomago Workshop Enterprise Agreement 2012-2013	Laing O’Rourke Australia Construction Pty Ltd trading as Redispan Conveyors	AE892505	31/12/2013
AG2016/2973	Redispan Conveyors Tomago Workshop Enterprise Agreement 2014	Laing O’Rourke Australia Construction Pty Ltd trading as Redispan Conveyors	AE408408	31/12/2014