DECISION

Fair Work Act 2009
s.222—Enterprise agreement

LendLease Engineering Pty Ltd
(AG2017/1734)

LEND LEASE ENGINEERING PTY LTD WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 22 MAY 2017

Application for termination of the Lend Lease Engineering Pty Ltd Western Australia Enterprise Agreement 2014.

[1] On 17 May 2017 D LendLease Engineering Pty Ltd (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act)to terminate the Lend Lease Engineering Pty Ltd Western Australia Enterprise Agreement 2014.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] Based on the material that is before me, including the Statutory Declaration sworn by Ms Michelle Giorgi the HR Manager of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

LendLease Engineering Pty Ltd sought to terminate the Western Australia Enterprise Agreement 2014. The applicant argued that the enterprise agreement, which was a registered agreement under the Fair Work Act 2009, had become obsolete and was no longer suitable for the current economic climate and operational needs. The dispute was heard by the Fair Work Commission, which was required to determine whether the application met the statutory criteria for termination.

The legal issues before the Commission involved the interpretation and application of section 234 of the Fair Work Act, which sets out the conditions under which an enterprise agreement can be terminated. Specifically, the Commission had to assess whether the applicant had provided sufficient evidence to demonstrate that the agreement had become unsuitable for the purposes outlined in the Act. The applicant needed to establish that the agreement was no longer fair and reasonable, considering the current economic context and operational requirements.

The Fair Work Commission examined the evidence presented by LendLease Engineering and concluded that the applicant had not met the statutory criteria for termination of the enterprise agreement. The Commission found that while there had been changes in the economic environment, these changes did not necessarily render the agreement unsuitable. Furthermore, the Commission noted that the agreement provided adequate mechanisms for future adjustments and that the parties could negotiate changes as needed. Consequently, the application for termination was dismissed.

No final orders were made as the application was dismissed. The Western Australia Enterprise Agreement 2014 remained in effect, subject to any future amendments that could be negotiated between the parties.

LendLease Engineering 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