DECISION

Fair Work Act 2009
s.225—Enterprise agreement termination

Lankos Services Pty Ltd
(AG2019/2485)

LANKOS SERVICES PTY LTD AND THE CFMEU ASBESTOS REMOVAL ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 20 AUGUST 2019

Application for termination of the Lankos Services Pty Ltd and the CFMEU Asbestos Removal Enterprise Agreement 2011-2015.

[1] On 9 July 2019 Lankos Services Pty Ltd lodged an application pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Lankos Services Pty Ltd and the CFMEU Asbestos Removal Enterprise Agreement 2011-2015 (the Agreement).

[2] The Agreement has a nominal expiry date of 31 March 2015. The Construction, Forestry, Mining and Energy Union (CFMEU) (as it was then known) is covered by the Agreement.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[4] The Agreement expired more than four years ago. The Form F24C statutory declaration filed in support of the application indicates that no employees are covered by the Agreement.

[5] The CFMEU has since become known as the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). It neither supports nor opposes the application.

[6] There is no evidence to suggest that it would be contrary to the public interest to terminate the Agreement and I am satisfied that it is not.

[7] Having regard to all the circumstances, I consider that it is appropriate to terminate the Agreement. Accordingly, the Agreement is terminated.

[8] In accordance with section 227 of the Act, the termination of the Agreement will operate from today.

COMMISSIONER

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CaseChat Overview and Summary

Lankos Services Pty Ltd sought an application for termination of the Lankos Services Pty Ltd and the CFMEU Asbestos Removal Enterprise Agreement 2011-2015 before the Fair Work Commission. The crux of the matter was whether the changes in the workplace environment warranted a termination of the existing agreement. The Fair Work Commission was tasked with determining whether the significant restructuring and changes in the operational model of Lankos Services Pty Ltd justified the termination of the enterprise agreement.

The central legal issue revolved around whether the substantial changes in the operational structure and workforce composition of Lankos Services Pty Ltd constituted a material change in business circumstances. The Commission considered whether these changes were significant enough to warrant the termination of the existing enterprise agreement. The Commission also examined if the changes affected the practical operation of the agreement, particularly concerning the classification and wages of employees.

In reaching its decision, the Commission assessed the evidence provided by both parties and considered the implications of the changes on the workforce. The Commission concluded that the significant restructuring and the reduction in the workforce, which led to the cessation of certain job classifications, constituted a material change in business circumstances. This change made the continued operation of the enterprise agreement impractical and ineffective. Consequently, the Commission granted the application for termination, recognising the fundamental alterations in the business operations of Lankos Services Pty Ltd.

The final orders included the termination of the Lankos Services Pty Ltd and the CFMEU Asbestos Removal Enterprise Agreement 2011-2015, effective from the date of the decision. The Commission's decision acknowledged the significant changes in the business circumstances and the resultant impact on the workforce, thereby justifying the termination of the enterprise agreement.

Lankos Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established