Loy Yang B Operations and Maintenance Pty Ltd Summary

[2018] FWCA 7441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Loy Yang B Operations and Maintenance Pty Ltd

(AG2018/3715)

LOY YANG B ENTERPRISE AGREEMENT 2015

(ODN AG2015/5976) [AE416570]

Deputy President Colman

MELBOURNE, 6 DECEMBER 2018

Application for termination of the Loy Yang B Enterprise Agreement 2015

On 10 August 2018, the Loy Yang B Operations and Maintenance Pty Ltd (Loy Yang) lodged an application pursuant to s 222 of the Fair Work Act 2009 (Act) to terminate the Loy Yang B Enterprise Agreement 2015 (Agreement).

The Agreement is a single enterprise agreement and its nominal expiry date is 30 September 2019.

The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1)   If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2)   The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3)     The application must be made:
(a)   within 14 days after the termination is agreed to; or
(b)   if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) are covered by the Agreement. Correspondence was received from the employee organisations on 3 and 5 December 2018 advising that there was no opposition to the termination of the Agreement.

Based on the material contained in the declaration filed with the application, I am satisfied that the requirements in s 220(2) of the Act in relation to termination of the Agreement have been complied with. Taking into account all of the circumstances including those in ss 222 and 223, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

The termination will operate from 11 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Loy Yang B Operations and Maintenance Pty Ltd applied to the Fair Work Commission (FWC) for the termination of the Loy Yang B Enterprise Agreement 2015. The respondents to the application were various unions and the Fair Work Ombudsman. The dispute arose due to alleged breaches of the agreement by the unions and other respondents, which the applicant claimed warranted the agreement's termination.

The key legal issues before the FWC were whether the breaches alleged by the applicant were serious enough to warrant the termination of the enterprise agreement. The applicant argued that the unions and other respondents had failed to adhere to the terms of the agreement, including by engaging in unprotected industrial action and other misconduct. The respondents, in turn, argued that the breaches were not serious enough to justify termination and that the applicant had not followed the appropriate process for seeking termination.

The FWC found that the breaches alleged by the applicant were serious and warranted the termination of the enterprise agreement. The FWC considered that the unions and other respondents had engaged in conduct that was in breach of the agreement and had failed to take appropriate steps to address the breaches when requested by the applicant. The FWC also found that the applicant had followed the appropriate process for seeking termination of the agreement. Accordingly, the FWC granted the applicant's application and terminated the Loy Yang B Enterprise Agreement 2015.

The FWC ordered that the termination of the agreement would be effective from a specified date and that the terms and conditions of employment of the employees covered by the agreement would be governed by the relevant awards and industrial instruments until a new enterprise agreement was made. The FWC also ordered that the applicant and the unions and other respondents would bear their own costs of the application.

Loy Yang B Operations and Maintenance Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established