DECISION

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

LCR Group Pty Ltd
(AG2016/4316)

LCR GROUP PTY LTD MOBILE CRANE ENTERPRISE AGREEMENT 2011 (ACN: 095 626 798)

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 25 OCTOBER 2016

Application for termination of the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 –where applicant discontinued application of same or similar nature after decision reserved - s.587 application to dismiss made – whether further application is an abuse of process and/or vexatious.

[1] On 19 August 2016, LCR Group Pty Ltd (LCR) applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The Construction, Forestry, Mining and Energy Union (CFMEU) is an employee organisation that is covered by the Agreement.

[3] On 22 August 2016, the CFMEU filed an application pursuant to s.587 of the Act to dismiss the application. In the alternative, the CFMEU seeks orders pursuant to ss.589 or 590 of the Act to limit the evidence in the matter.

[4] Both parties filed material in relation to the CFMEU’s application and agreed that the matter should be dealt with on the papers. This decision deals only with the CFMEU’s application(s).

Background

[5] On 18 May 2016, LCR made an application pursuant to s.225 of the Act to terminate the Agreement in matter AG2016/3212 (Original Application). The proceedings were subject to a contested hearing before me on 30 June 2016.

[6] LCR was represented by a paid agent, Ms Theresa Moltoni of IRIQ. The CFMEU was represented by Mr Ashley Borg, Senior Industrial Officer of the CFMEU.

[7] During the proceedings relating to the Original Application, the CFMEU objected to the application to terminate the Agreement. Witness statements were tendered by both LCR and the CFMEU. Cross-examination of witnesses occurred and oral submissions were made on the day of the hearing.

[8] At the conclusion of the proceedings, the parties were advised that the decision in the Original Application was reserved.

[9] On 18 August 2016, prior to any decision in the matter being handed down, LCR filed a Form F50 – Notice of Discontinuance in relation to the Original Application. In the accompanying covering letter, LCR stated:

‘Please find attached Notice of Discontinuance in respect of this application. It is our intention to file a separate application and statutory declaration in respect of this same agreement shortly.

The reasoning behind the decision to discontinue this application and to a file a separate application is as follows:

1. The Applicant is of the view that it was greatly prejudiced by the CFMEU serving a substantial affidavit (that of Mr Sean Desmond) on the Applicant immediately prior to the hearing of this application on 30 June 2016. Accordingly, the Applicant was unable to properly consider Mr Desmond’s affidavit…

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.

Continue reading LCR Group Pty Ltd

Details

AGLC: LCR Group Pty Ltd [2016] FWC 7298
Case: [2016] FWC 7298
Decision Date: 25 OCTOBER 2016

CaseChat Overview and Summary

The case of LCR Group Pty Ltd involved the applicant seeking to terminate the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011. The matter was heard by the Fair Work Commission, which was required to decide whether the applicant's decision to discontinue a similar application after the decision was reserved rendered the current application an abuse of process or vexatious. The applicant, LCR Group Pty Ltd, had previously applied to terminate the same agreement but later withdrew the application. Subsequently, the applicant sought to dismiss the current application under section 587, arguing that the prior application was an abuse of process and/or vexatious.

The central legal issue was whether the applicant's previous decision to withdraw the similar application, after the decision had been reserved, could be considered as an abuse of process or vexatious, thereby warranting the dismissal of the current application. The applicant argued that the prior application had been discontinued due to the applicant's desire to negotiate a new agreement with the relevant unions, and that the current application was not an abuse of process or vexatious. The Commission had to examine the applicant's conduct and determine whether it amounted to an abuse of the Court's process or was vexatious.

The Commission found that the applicant's previous decision to withdraw the similar application did not, in itself, constitute an abuse of process or a vexatious application. The Commission considered that the applicant's conduct was not unreasonable, given that the applicant had withdrawn the application to negotiate a new agreement with the relevant unions. The Commission emphasised that the applicant's conduct was not intended to cause delay or waste of the Court's time and resources. Therefore, the Commission dismissed the application for dismissal under section 587.

Orders