Lucas Drilling Pty Ltd - [2014] FWCA 4213

[2014] FWCA 4213

FAIR WORK COMMISSION

DECISION

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

Lucas Drilling Pty Ltd
(AG2014/3950)

AJ LUCAS DRILLING DIVISION EXPLORATION EMPLOYEES ENTERPRISE AGREEMENT 2010

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 27 JUNE 2014

Summary: application to terminate agreement - objections by CFMEU - s.223 - objections do not challenge statutory declaration - un-evidenced claims - application approved.

[1] On 12 March 2014 Lucas Drilling Pty Ltd (“the employer”) made an application under s.222 of the Fair Work Act 2009 (“the Act”) seeking that the Fair Work Commission (“the Commission”) terminate the AJ Lucas Drilling Division Exploration Employees Enterprise Agreement 2010 (“the Agreement”).

[2] The relevant provisions under which the Commission considers the application referred to above 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 application

[3] The nominal expiry date of the Agreement was 7 October 2012.

[4] The statutory declaration filed by way of form F24A of the Commission’s forms declared as follows:

On 26 February 2014 through the employer's bargaining representatives, Lucas proposed new terms and conditions…

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.

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Details

Case: [2014] FWCA 4213
Decision Date: 27 JUNE 2014

CaseChat Overview and Summary

Lucas Drilling Pty Ltd applied to the Fair Work Commission to terminate an enterprise agreement in place with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The CFMEU objected to the application, raising concerns about the company's intentions and the impact on employees. The legal issues before the Commission involved assessing whether the objections made by the CFMEU were sufficient to prevent the termination of the enterprise agreement. Specifically, the Commission needed to determine if the objections challenged the veracity of the statutory declaration made by the applicant, or if they merely presented un-evidenced claims about the company's motives and the consequences of the agreement's termination.

The Fair Work Commission found that the objections raised by the CFMEU did not effectively challenge the statutory declaration provided by Lucas Drilling. The objections largely consisted of un-evidenced claims about the company's motives and the potential impact on employees, without addressing the specific grounds outlined in the statutory declaration. As a result, the Commission concluded that the objections were not sufficient to prevent the approval of the application to terminate the enterprise agreement. The Commission approved the application, emphasising that the objections failed to meet the required standard of challenging the statutory declaration directly.

In light of the Commission's decision, the enterprise agreement between Lucas Drilling and the CFMEU was terminated. The final orders of the Commission mandated that the termination would be effective from the date of the decision, and outlined the procedures for notifying affected employees and other relevant parties. The Commission's ruling underscored the importance of objections being specific and directly addressing the statutory declaration, particularly in cases involving applications to terminate enterprise agreements.

Orders