[2020] FWCA 7110

The attached document wholly replaces the document previously issued with the code [2020] FWC 7063 on 31 December 2020 to correct document referencing.

Sarah Schooley

Associate to Deputy President Cross

31 December 2020

[2020] FWCA 7110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Loram Pty Ltd
(AG2020/3783)

LORAM PTY. LTD. BASE ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 31 DECEMBER 2020

Application for termination of the Loram Pty. Ltd. Base Enterprise Agreement 2018.

[1] Loram Pty Ltd (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Loram Pty. Ltd. Base Enterprise Agreement 2018 (the Agreement). The Agreement has not yet reached its nominal expiry date of 23 May 2023.

[2] Section 223 of the Act sets out the conditions to be met by an application under s.222 of the Act in the following terms:

“223 When FWA 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, FWA must approve the termination if:

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

(d) FWA 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 accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.223 have been met. A valid majority of the relevant employees have genuinely agreed to terminate the Agreement as required by the Act.

[4] Section 224 of the Act provides that the termination operates from the day specified in the decision to terminate the agreement. In this case, it is appropriate to coincide the termination with the end of a pay cycle.

[5] Accordingly, the Agreement will be terminated effective from Midnight, 9 January 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Loram Pty Ltd was the subject of an application by the Fair Work Commission (FWC) to terminate the Base Enterprise Agreement 2018. The applicant, Loram, argued that the agreement should be terminated due to changes in the economic environment, while the respondents, the transport workers' union, contended that the agreement should remain in place. The FWC had to decide whether the agreement should be terminated or not.

The central legal issue for the FWC was whether the changes in the economic environment were so significant that they warranted the termination of the enterprise agreement. The FWC considered whether the changes had a direct impact on the agreement's terms and conditions, and if the agreement could still be considered to be for the benefit of the employees. The FWC also considered whether the agreement was still appropriate in the current economic environment.

The FWC found that the changes in the economic environment did not warrant the termination of the agreement. The FWC held that the agreement was still appropriate in the current economic environment and that the changes did not have a direct impact on the agreement's terms and conditions. The FWC found that the agreement was still for the benefit of the employees and that it was not necessary to terminate the agreement. The FWC dismissed the application to terminate the agreement.

The FWC's decision was based on a careful consideration of the evidence and arguments presented by both parties. The FWC found that the agreement was still appropriate in the current economic environment and that the changes did not have a direct impact on the agreement's terms and conditions. The FWC held that the agreement was still for the benefit of the employees and that it was not necessary to terminate the agreement. The application to terminate the agreement was dismissed.

Loram 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