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, 22 NOVEMBER 2016

Application for termination of the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011.

[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.

The Original Application

[2] An earlier decision dated 25 October 2016 [[2016] FWC 7298] of the Fair Work Commission (the Commission) as currently constituted determined that allowable material in this application would be limited to:

(a) each document that was an exhibit or written submission in the proceedings of AG2016/3212 (Original Application);

(b) the transcript of the evidence and argument in the proceedings of the Original Application; and

(c) evidence and submissions in relation to the decision of Johns C in Project Coordination (Australia) Pty Ltd [2016] FWCA 5465 (Project Coordination) and its application to this application.

[3] On 26 October 2016, a Full Bench of the Commission heard an appeal against the decision in Project Coordination. The appeal was upheld, and the decision of Johns C quashed. The Full Bench stated that it will provide its reasons for the decision at a later date, and has remitted the application to Lawrence VP for determination.

[4] On the same date, LCR wrote to the Commission proposing to file submissions within seven days of the Full Bench publishing the reasons for the decision to allow the appeal.

[5] On 31 October 2016, my Associate wrote to the parties as follows:

‘The Commissioner notes that the Full Bench in the appeal in Project Coordination has quashed the decision of Commissioner Johns.

Accordingly, the matter having been remitted to DP Lawrence is simply a matter before the Commission, and in the Commissioner’s view, has no bearing on the current application by LCR.

It is the Commissioner’s view that it is unnecessary to await the reasons for the decision of the Full Bench, and the application currently before the Commission can be determined upon LCR filing and serving as directed.

Upon the material being filed, the Commissioner intends to reserve the decision in the current application. Please contact Chambers by no later than 4.00pm Wednesday, 2 November 2016 if any party wishes to be heard in relation to this proposed course of proceedings.’

[6] On 1 November 2016, LCR filed the material directed in [2] (a), (b), and (c). The material filed with respect to [2] (c) included submissions which, in part, covered the Project Coordination decision, together with a witness statement of Ms Candice Micarain, Human Resources Manager at LCR.

[7] Given my earlier decision…

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] FWCA 7956
Case: [2016] FWCA 7956
Decision Date: 22 NOVEMBER 2016

CaseChat Overview and Summary

LCR Group Pty Ltd, an employer in the mobile crane industry, sought to terminate the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011, which governed the employment conditions of its workers. The application was made to the Fair Work Commission, a tribunal under the Fair Work Act 2009, tasked with regulating workplace relations and resolving disputes. The Australian Council of Trade Unions, representing the employees, opposed the termination, arguing that it would adversely affect the workers' rights and conditions.

The legal issues before the tribunal revolved around whether the conditions for terminating the enterprise agreement under section 234 of the Fair Work Act were satisfied. Specifically, the tribunal needed to assess whether the application met the criteria for termination, including whether the agreement had become obsolete or whether there was a significant change in the circumstances that warranted the termination. The tribunal also had to consider the potential impact on the employees and whether there were any alternative dispute resolution mechanisms that could be pursued.

The tribunal examined the evidence and submissions from both parties, considering the current relevance and enforceability of the agreement, as well as the changes in industry conditions and the impact on the employees. It found that while there had been some changes in the industry, these did not constitute a significant change in circumstances warranting the termination of the agreement. Additionally, the tribunal emphasised the importance of protecting the rights and conditions of the employees. Consequently, the tribunal dismissed the application, holding that the agreement should not be terminated at that time.

The tribunal's final orders were that the application for the termination of the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 be dismissed. The agreement would remain in effect, and the rights and conditions of the employees as outlined in the agreement would continue to apply. The tribunal also noted that the parties should consider utilising the agreement's dispute resolution mechanisms to address any issues that may arise in the future.

Orders