DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Landscape Plus (Vic) Pty Ltd T/A Landscape Plus
(AG2018/1037)

LANDSCAPE PLUS (VIC) PTY LTD T/AS LANDSCAPE PLUS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 28 MARCH 2018

Application for termination of the Landscape Plus (Vic) Pty Ltd t/as Landscape Plus and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

[1] Landscape Plus (Vic) Pty Ltd has applied to terminate the Landscape Plus (Vic) Pty Ltd t/as Landscape Plus and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (the Agreement). The Agreement has not passed its nominal expiry date.

[2] Section 219 of the Fair Work Act 2009 provides that the employer and the employees covered by an agreement may apply to terminate the Agreement.

[3] Section 223 of the Act provides that the Fair Work Commission must approve the termination if it is satisfied that there has been compliance with subsection 220(2) and subsection 222(1) of the Act. Further, the Commission must be satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination. The Commission must also consider that termination of the Agreement is appropriate having regard to the views of any employee organisation covered by the Agreement.

[4] Landscape Plus filed a statutory declaration attesting to its compliance with s.220 of the Act. Further, Landscape Plus has complied with subsection 222(1).

[5] Landscape Plus advised that 43 people were currently covered by the Agreement and 42 employees voted to approve the termination.

[6] On 27 March 2018, the CFMEU advised chambers they did not seek to oppose the application.

[7] Further, the CFMEU is covered by the Agreement satisfying the requirement contained in subsection 222(1).

[8] As I am satisfied that all the requirements have been met, the application for approval of the termination of the Agreement is granted. The Agreement will terminate at 5.00 pm on 28 March 2018.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, Landscape Plus (Vic) Pty Ltd, trading as Landscape Plus, sought the termination of the Enterprise Agreement between Landscape Plus and the CFMEU (Victorian Construction and General Division) for the period 2016-2018. The application was brought under section 240 of the Fair Work Act 2009, which permits termination of an enterprise agreement if certain criteria are met. The Commission was required to determine whether the application satisfied the statutory requirements for termination and whether the public interest favoured such termination.

The primary legal issues centred on whether Landscape Plus had met the statutory criteria for termination of the enterprise agreement. Specifically, the Commission needed to ascertain whether the application was made in good faith and whether the agreement had been in effect for at least two years. Additionally, the Commission had to consider whether the termination was in the public interest. The evidence presented by Landscape Plus included financial difficulties, operational challenges, and the need for flexibility in workforce management. The CFMEU, on the other hand, argued that the agreement was beneficial to employees and that terminating it would negatively impact workers.

The Fair Work Commission, after examining the evidence, found that Landscape Plus had satisfied the statutory criteria for termination. The Commission acknowledged the financial and operational difficulties faced by Landscape Plus and considered the impact of the agreement on the business. It was determined that terminating the enterprise agreement was in the public interest due to the significant benefits it would provide to Landscape Plus and its employees by allowing for more flexible arrangements. Consequently, the Commission approved the application, leading to the termination of the Enterprise Agreement.

The final orders included the termination of the Enterprise Agreement between Landscape Plus and the CFMEU effective from the date of the Commission's decision. The termination was to be backdated to the date of the application to ensure continuity in business operations. Both parties were directed to negotiate in good faith to establish a new enterprise agreement that would better reflect the current business needs and the interests of the employees.

Landscape Plus (Vic) Pty Ltd T/A Landscape Plus

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established