Laing O’Rourke T/A Select Plant Hire Employees Collective (NSW) Agreement 2008 – 2011
[2016] FWCA 3975
•28 JUNE 2016
| [2016] FWCA 3975 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Laing O’Rourke Australia Pty Ltd
(AG2016/2975 – AG2016/3059)
LAING O’ROURKE T/A SELECT PLANT HIRE EMPLOYEES COLLECTIVE (NSW) AGREEMENT 2008 – 2011 AND OTHERS
Building, metal and civil construction industries | |
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 28 JUNE 2016 |
Applications for termination of the 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 85 specified agreements pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
[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any purpose because the construction project for which they were made is completed or the relevant agreement has been superseded by another instrument.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 41 specified agreements pursuant to s.225 of the Fair Work Act (the Act). Those applications are dealt with in a separate decision issued on 21 June 2016 [2016] FWCA 3896. That decision contains more detail about the overall consultation process.
Legislative Provisions
[6] Applications pursuant to Schedule 3, Item 16 to terminate collective agreement-based transitional instruments are to be dealt with by applying the relevant provisions of the Act relating to the termination of enterprise agreements after their nominal expiry date.
[7] 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.
[8] 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
[9] The applications were accompanied by a Statutory Declaration by Andrew Nolan, the Applicant’s Head of Employee and Industrial Relations.
[10] 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.
[11] 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.
[12] No opposition as expressed to the termination of any of these agreements.
[13] A reminder letter was sent to the unions on 23 May 2016.
Conclusion
[14] 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.
[15] 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.
[16] A schedule listing the agreements to be terminated is attached to this decision as Annexure “A”.
[17] 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, PR581798>
Annexure A
File Ref | Agreement Title | Company entity | Agmnt ID | Nominal expiry date |
AG2016/2975 | Laing O'Rourke T/A Select Plant hire Employees Collective (NSW) Agreement 2008 - 2011 | Laing O'Rourke Australia Construction Pty Limited trading as Select Plant | AC316804 | 31/12/2011 |
AG2016/2976 | Laing O'Rourke Australia Construction - QLD Building North Enterprise Agreement | Laing O'Rourke Australia Construction Pty Ltd | AC302862 | 31/12/2008 |
AG2016/2977 | Select Plant Hire t/as Select Constructions P/L and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005 | Select Plant Hire Pty Ltd t/a Select Constructions | AG828991 | 31/10/2005 |
AG2016/2978 | SELECT Plant hire Workshop Collective Agreement (Queensland) 2008 - 2011 | Laing O'Rourke Construction Pty Ltd trading as Select Plant Hire | AC316020 | 30/06/2011 |
AG2016/2984 | Laing O'Rourke Wetalla Advanced Water Treatment Plant Workplace Agreement 2008 | Laing O'Rourke Australia Construction Pty Ltd | AC315274 | Not known |
AG2016/2985 | Cape Lambert Upgrade Project Laing O'Rourke CFMEU Greenfields Collective Agreement 2008 | Laing O'Rourke Australia Construction Pty Ltd | AC313261 | Not known |
AG2016/2986 | Cape Lambert Upgrade Project Laing O'Rourke Metal Trades Greenfields Collective Agreement 2008 | Laing O'Rourke Australia Construction Pty Ltd | AC313370 | Not known |
AG2016/2987 | Laing O'Rourke Ltd NewGen Kwinana Power Station (AMWU and CEPU) Agreement 2006-2009 | Laing O'Rourke Australia Construction Pty Ltd | AC302808 | 2009 |
AG2016/2988 | Laing O'Rourke Ltd NewGen Kwinana Power Station Project (AWU and CFMEU) Agreement 2006-2009 | Laing O'Rourke Australia Construction Pty Ltd | AC302353 | 2009 |
AG2016/2989 | Laing O'Rourke QLD Rail Infrastructure (Electrification Works) Collective Agreement 2007- 2010 | Laing O'Rourke Australia Construction Pty Ltd | AC314203 | 2010 |
AG2016/2990 | LAING O'ROURKE RAIL ELECTRIFICATION WORKS CONSTRCUTION AGREEMENT DALRYMPLE BAY BALLOON LOOP 2006-200 | Laing O'Rourke (BMC) Pty Limited (ABN 36 009 830 460) | AC303489 | 30/11/2007 |
AG2016/2991 | LAINGOROURKE & EMPLOYEES RAIL GROUP-WESTERN AUSTRALIA PILBARA REGION COLLECTIVE AGREEMENT 2007-2010 | Laing O'Rourke Australia Construction Pty Ltd | AC309789 | 2010 |
AG2016/2992 | Laing O'Rourke(BMC) Pty Limited TPI Project ( Bridgeworks) Greenfields Agreement 2006 | Laing O'Rourke (BMC) Pty Limited | AC303262 | Not known |
AG2016/2993 | Laing O'Rourke (BMC) Pty Ltd Bunbury Port Woodchip Project Greenfields Agreement 2006-2007 | Laing O'Rourke (BMC) Pty Limited | AC302264 | 30/09/2007 |
AG2016/2994 | Laing O'Rourke Burrup Materials Facility Construction Phase 1 | Laing O'Rourke Australia Construction Pty Ltd | AC315049 | Not known |
AG2016/2995 | LAING O'ROURKE AUSTRALIA DARLING DOWNS POWER STATION GREENFIELDS PROJECT AGREEMENT | Laing O'Rourke Australia Construction Pty Ltd | AC309126 | Not known |
AG2016/2996 | LAING O'ROURKE AUSTRALIA PTY LTD LUGGAGE POINT AWTP WORKPLACE GREENFIELDS AGREEMENT 2007 | Laing O'Rourke Australia Construction Pty Ltd | AC306018 | Not known |
AG2016/2997 | Laing O'Rourke Sandvik Shiploaders Assembly AMC Greenfields Agreement 2008 | Laing O'Rourke Pty Ltd | AC314155 | Not known |
AG2016/2998 | Laing O'Rourke Australia Construction pty Ltd T/A select Pant Hire - WA Gt Northern Highway Project | Laing O'Rourke Australia Construction Pty Limited trading as Select Plant Hire | AC316431 | 2009 |
AG2016/2999 | Laing O'Rourke Australia Construction Pty Ltd Grasstree Creek Workplace Agreement 2008 | Laing O'Rourke Australia Construction Pty Ltd | AC316711 | 24/11/2009 |
AG2016/3000 | LAINGOROURKE ALCAN GOVE EXPANSION AGREEMENT 2007-2008 | Laing O'Rourke Australia Construction Pty Ltd | AC311713 | 4/11/2008 |
AG2016/3001 | Laing O'Rourke Aust Construction Pty. Ltd. NCIG CET Project Greenfields Agt 2008-2010 | Laing O'Rourke Australia Construction Pty Ltd | AC314834 | 31/12/2010 |
AG2016/3002 | Laing O'Rourke Australia Construction Grasstree Creek Project Workplace Agreement | Laing O'Rourke Australia Construction Pty Ltd | AC317909 | Not known |
AG2016/3003 | LAINGO'ROURKE AUSTRALIA CONSTRUCTION LUGGAGE POINT AWTP WORKPLACE AGREEMENT | Laing O'Rourke Australia Construction Pty Ltd | AC306877 | Not known |
AG2016/3004 | Select Civil Pty Ltd CFMEU Enterprise Agreement, 1999 | Select Civil Pty Ltd | AG798109 | Not known |
AG2016/3005 | Select Civil Pty Ltd CFMEU Enterprise Agreement, 2001-2003 | Select Civil Pty Ltd | AG822221 | 17/03/2005 |
AG2016/3006 | Select Construction Pty Ltd and MBAV/CFMEU Building and Construction Industry Collective Bargaining Agreement 1999-2002 | Select Construction Pty Ltd | AG805940 | Not known |
AG2016/3007 | Select Constructions Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 1999-2002 | Select Construction Pty Ltd | AG817004 | Not known |
AG2016/3008 | Redispan Conveyors Pty Ltd Tomago Workshop Collective Agreement 2008 | Redispan Conveyors Pty Limited (ABN 95 092 454 898) | AC315213 | 31/12/2008 |
AG2016/3009 | Redispan Conveyors Pty Ltd Tomago Workshop Enterprise Agreement 2006 | Redispan Conveyors Pty Limited | AG846786 | 31/12/2006 |
AG2016/3010 | Redispan Conveyors AUC Agreement 2006 | Redispan Conveyors Pty Limited | AC304065 | 31/12/2007 |
AG2016/3011 | AWU - CFMEU Barclay Mowlem Construction Ltd Civil Construction Group (NSW) Civil Operations Enterprise Agreement 2004-2006 | Barclay Mowlem Construction Ltd | AG833663 | 31/12/2006 |
AG2016/3012 | Barclay Mowlem - ACT Building Group Certified Agreement 1997-1999 | Barclay Mowlem Construction Ltd | AG770788 | 1999 |
AG2016/3013 | Barclay Mowlem - Building Group (NSW) Enterprise Agreement [1997] | Barclay Mowlem Construction Ltd | AG770547 | Not known |
AG2016/3014 | Barclay Mowlem Construction Limited Alcan Gove Expansion Project (AWU, AMWU, CEPU) Agreement 2004 | Barclay Mowlem Construction Ltd | AG838677 | 4/11/2007 |
AG2016/3015 | Barclay Mowlem Construction Limited - Alice Springs to Darwin Major Bridge Construction Agreement [2002] | Barclay Mowlem Construction Ltd | AG817275 | Not known |
AG2016/3016 | Barclay Mowlem Construction Limited - Alice Springs to Darwin Rail Construction Agreement [2002] | Barclay Mowlem Construction Ltd | AG815500 | Not known |
AG2016/3017 | Barclay Mowlem Construction Limited Curragh North Materials Handling Project Agreement | Barclay Mowlem Construction Ltd | AG840874 | 31/12/2006 |
AG2016/3018 | Barclay Mowlem Construction Limited Enterprise Agreement 1997 - 2000 | Barclay Mowlem Construction Ltd | AG770444 | Not known |
AG2016/3019 | Barclay Mowlem Construction Limited (Mining Area C Development) Certified Agreement 2002 | Barclay Mowlem Construction Ltd | AG819164 | Not known |
AG2016/3020 | Barclay Mowlem Construction Limited (Power Stations) - New South Wales - Enterprise Agreement 1994 | Barclay Mowlem Construction Ltd | AG769605 | Not known |
AG2016/3021 | Barclay Mowlem Construction Limited Project Neweipa Partnership Agreement 2003 | Barclay Mowlem Construction Ltd | AG831462 | 31/08/2006 |
AG2016/3022 | Barclay Mowlem Construction Limited Rail Group Pilbara Region Enterprise Agreement 2005 | Barclay Mowlem Construction Ltd | AG842399 | 9/09/2007 |
AG2016/3023 | Barclay Mowlem Construction Limited Site Services Certified Agreement 2001 | Barclay Mowlem Construction Ltd | AG805656 | Not known |
AG2016/3024 | Barclay Mowlem Construction Ltd Bold Park Reservoir Project Greenfields Agreement 2006 | Barclay Mowlem Construction Ltd | AC300422 | 15/06/2007 |
AG2016/3025 | BARCLAY MOWLEM CONSTRUCTION LTD DALRYMPE BAY COAL TERMINAL BALLOON LOOP 2006 2007 | Barclay Mowlem Construction Ltd | AC301240 | 30/06/2007 |
AG2016/3026 | Barclay Mowlem Construction Ltd Dampier Bulk Liquids Berth Project AWU Certified Agreement 2004 | Barclay Mowlem Construction Ltd | AG837541 | 18/11/2007 |
AG2016/3027 | Barclay Mowlem Construction Ltd Dampier Bulk Liquids Berth Project CFMEU Certified Agreement 2004 | Barclay Mowlem Construction Ltd | AG837538 | 18/11/2007 |
AG2016/3028 | Barclay Mowlem Construction Ltd Dampier Bulk Liquids Berth Project Metal Trades Certified Agreement 2004 | Barclay Mowlem Construction Ltd | AG837537 | 18/11/2007 |
AG2016/3029 | Barclay Mowlem Construction Ltd Engineering Construction Group (Qld), Grove Project Enterprise Agreement 2000 | Barclay Mowlem Construction Ltd | AG771631 | Not known |
AG2016/3030 | Barclay Mowlem Construction Ltd (Mining Area C Project) Metal Trades Certified Agreement 2003 | Barclay Mowlem Construction Ltd | AG821910 | Not known |
AG2016/3031 | Barclay Mowlem Construction Ltd Resource Engineering Group (NSW) Civil Operations Enterprise Agreement 1999 - 2001 | Barclay Mowlem Construction Ltd | AG771279 | 2001 |
AG2016/3032 | Barclay Mowlem Construction Ltd Shiploader Assembly Certified Agreement 2001 | Barclay Mowlem Construction Ltd | AG808822 | Not known |
AG2016/3033 | Barclay Mowlem Construction Ltd, Thornlie Railway Station and Bridges - Structural Work Project Certified Agreement 2004-2005 | Barclay Mowlem Construction Ltd | AG834411 | 1/07/2005 |
AG2016/3034 | Barclay Mowlem Construction Ltd, Thornlie Railway Station and Bridges - Structural Work Project Certified Agreement 2004-2005 | Barclay Mowlem Construction Ltd | AG834797 | 1/07/2005 |
AG2016/3035 | Barclay Mowlem Construction Ltd Wellington Street Ramps Project Agreement [2000] | Barclay Mowlem Construction Ltd | AG771613 | Not known |
AG2016/3036 | Barclay Mowlem Construction Ltd (West Angelas Plant Project) Metal Trades Certified Agreement 2001 | Barclay Mowlem Construction Ltd | AG809124 | Not known |
AG2016/3037 | Barclay Mowlem General Civil Engineering Projects - CFMEU Enterprise Agreement [1997] | Barclay Mowlem Construction Ltd | AG770384 | Not known |
AG2016/3038 | BARCLAY MOWLEM INFRASTRUCTURE EAST RAIL OPERATIONS AMU COLLECTIVE AGREEMENT 2006 2009 | Barclay Mowlem Construction Ltd | AC301711 | 30/06/2009 |
AG2016/3039 | BARCLAY MOWLEM INFRASTRUCTURE EAST RAIL OPERATIONS/AWU COLLECTIVE AGREEMENT 2006 2009 | Barclay Mowlem Construction Ltd | AC301565 | 30/06/2009 |
AG2016/3040 | Barclay Mowlem - Infrastructure Group Building (South) / CFMEU Enterprise Agreement [2006] | Barclay Mowlem Construction Ltd | AG847981 | 31/12/2008 |
AG2016/3041 | Barclay Mowlem (Marine and Civil Engineering Group) & Australian Workers Union Enterprise Agreement 1995/96 | Barclay Mowlem Construction Ltd | AG769914 | Not known |
AG2016/3042 | Barclay Mowlem - Northern Territory Building Group Certified Agreement [1998] | Barclay Mowlem Construction Ltd | AG770952 | Not known |
AG2016/3043 | Barclay Mowlem - Northern Territory Building Group Certified Agreement [2002] | Barclay Mowlem Construction Ltd | AG815595 | Not known |
AG2016/3044 | Barclay Mowlem Northern Territory Building Group Certified Agreement 2005 | Barclay Mowlem Construction Ltd | AG843591 | 31/12/2007 |
AG2016/3045 | Barclay Mowlem - NSW Building Group/CFMEU Enterprise Agreement [2002] | Barclay Mowlem Construction Ltd | AG819899 | Not known |
AG2016/3046 | Barclay Mowlem - NSW Building Group Enterprise Agreement 1999 | Barclay Mowlem Construction Ltd | AG771320 | Not known |
AG2016/3047 | Barclay Mowlem Port Hedland Rail Operation Enterprise Agreement 1998 - June 30th 2000 | Barclay Mowlem Construction Ltd | AG771022 | Not known |
AG2016/3048 | Barclay Mowlem Pty Ltd (Building Group - Victoria) and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005 | Barclay Mowlem Construction Ltd | AG827201 | 31/10/2005 |
AG2016/3049 | Barclay Mowlem Rail Group, Port Hedland Rail Operations Enterprise Agreement 2000 | Barclay Mowlem Construction Ltd | AG771905 | Not known |
AG2016/3050 | Barclay Mowlem Rail Group, Port Hedland Rail Operations Enterprise Agreement - June 2000 - June 2003 | Barclay Mowlem Construction Ltd | AG809125 | Not known |
AG2016/3051 | Barclay Mowlem (Rail NSW) and Australian Workers Union Enterprise Agreement 1996/1997 | Barclay Mowlem Construction Ltd | AG770158 | Not known |
AG2016/3052 | Barclay Mowlem (Resource Engineering Group) General Civil Engineering Projects - Western Australian - CFMEU Enterprise Agreement [1997] | Barclay Mowlem Construction Ltd | AG770620 | Not known |
AG2016/3053 | Barclay Mowlem (Resource Engineering Group) Gibson Island Works Certified Agreement 1998 | Barclay Mowlem Construction Ltd | AG770816 | Not known |
AG2016/3054 | Barclay Mowlem Roberts and Schaefer Joint Venture - Blackwater Coal Handling Preparation Plant Project Agreement 2005 | Barclay Mowlem Construction Ltd | AG839644 | 30/06/2006 |
AG2016/3055 | Barclay Mowlem / Thiess Joint Venture Darwin East Arm Port Stage 1 Remedial & Sundry Work Project Certified Agreement 2005 | Barclay Mowlem Construction Ltd | AG843521 | 20/10/2008 |
AG2016/3056 | Dampier Port Upgrade Barclay Mowlem Construction Limited CFMEU Certified Agreement 2004 | Barclay Mowlem Construction Ltd | AG837367 | 5/11/2007 |
AG2016/3057 | Dampier Port Upgrade Barclay Mowlem Construction Limited Electrical Trades Certified Agreement 2004 | Barclay Mowlem Construction Ltd | AG837366 | 5/11/2007 |
AG2016/3058 | Dampier Port Upgrade Barclay Mowlem Construction Limited Metal Trades Certified Agreement 2004 | Barclay Mowlem Construction Ltd | AG837365 | 5/11/2007 |
AG2016/3059 | Dampier Port Upgrade McConnell Dowell Barclay Mowlem Joint Venture CFMEU Certified Agreement 2004 | McConnell Dowell Barclay Mowlem Joint Venture | AG837368 | 5/11/2007 |
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