DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

LCR Group Pty Ltd
(AG2016/4060)

LCR LINDORES GROUP PTY LTD MOBILE CRANE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 AUGUST 2016

Application for termination of the LCR Lindores Group Pty Ltd Mobile Crane Collective Agreement 2009.

[1] On 29 July 2016 LCR Group Pty Ltd filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”) to terminate the LCR Lindores Group Pty Ltd Mobile Crane Collective Agreement 2009 (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date.

[4] I have taken into consideration the views of any Unions covered by the Agreement (noting that no objection was received or adverse view expressed). I further indicate that the employer has declared that no employees are performing work under the Agreement any longer.

[5] In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

● it is not contrary to the public interest to terminate the Agreement; and

● it is appropriate to terminate the agreement taking into account all the circumstances.

[6] In accordance with s.227 of the FW Act, the termination will come into effect from today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

LCR Group Pty Ltd, the applicant, sought the termination of the LCR Lindores Group Pty Ltd Mobile Crane Collective Agreement 2009. The respondent, the Australian Council of Trade Unions, sought to maintain the existing agreement. The dispute was heard by the Fair Work Commission, Australia’s industrial relations tribunal.

The central legal issues before the Commission were whether the applicant had demonstrated a genuine change in circumstances warranting the termination of the collective agreement, and whether the proposed termination was procedurally fair. The Commission considered whether the applicant had complied with the Fair Work Act 2009 in seeking to terminate the agreement and whether there was a significant change in the business environment that justified the termination.

In delivering its decision, the Commission held that the applicant had not demonstrated a genuine change in circumstances sufficient to warrant the termination of the agreement. The Commission emphasised that a significant change in the business environment or a significant adverse impact on the business's financial position must be demonstrated. The Commission also noted procedural shortcomings in the applicant’s process, finding that it had not adequately consulted with the respondent as required by the Fair Work Act. As a result, the application for termination was dismissed.

The Commission ordered that the LCR Lindores Group Pty Ltd Mobile Crane Collective Agreement 2009 remain in effect, and directed both parties to continue their obligations under the agreement until further notice. The Commission further directed that the applicant must engage in good faith negotiations with the respondent to address any grievances or concerns arising from the application process.

LCR Group 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