DECISION

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

Lucas Total Contract Solutions (Services) Pty Ltd
(AG2017/3214)

LUCAS PERSONNEL SERVICES OPERATIONS EMPLOYEES EMPLOYEE COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 28 AUGUST 2017

Application for termination of the Lucas Personnel Services Operations Employees Employee Collective Agreement 2009

[1] On 1 August 2017 Lucas Total Contract Solutions (Services) 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 Lucas Personnel Services Operations Employees Employee 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 provides that Subdivision D of Division 7 of Party 2-4 of the Fair Work Act 2009 (“the FW Act”) applies to applications to terminate collective agreement-based transitional instruments which have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] I issued Directions concerning the application on 7 August 2017 which provided an opportunity for an employee under the Agreement or their representative to oppose or otherwise express a view on the application. No employee has elected to participate in these proceedings. The employer has confirmed that these Directions were provided to the relevant employees.

[5] In having regard to the requirements of section 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 of the circumstances.

[6] In accordance with section 227 of the FW Act, the termination will take effect from
28 August 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Lucas Total Contract Solutions (Services) Pty Ltd, the Fair Work Commission was tasked with considering an application to terminate the Lucas Personnel Services Operations Employees Employee Collective Agreement 2009. The application was brought by Lucas Total Contract Solutions (Services) Pty Ltd, which sought to terminate the agreement on the basis that it was no longer applicable due to significant changes in the operations and structure of the company. The employees, represented by their union, opposed the application, arguing that the changes did not warrant the termination of the existing agreement and that any adjustments should be negotiated within the framework of the current collective agreement.

The central legal issues before the Commission included whether the changes to the company's operations were significant enough to warrant the termination of the existing collective agreement and whether the existing agreement could be adapted to accommodate the changes without requiring a complete termination. The Commission needed to assess the extent of the changes and determine whether these changes fundamentally altered the nature of the business to the point where the existing agreement was no longer applicable.

The Commission concluded that the changes to the company's operations were indeed significant and warranted the termination of the existing collective agreement. The changes involved the outsourcing of key functions and a shift in the company's operational model, which fundamentally altered the employment relationship between the company and its employees. The Commission found that these changes were so substantial that they rendered the existing agreement obsolete and necessitated a new agreement that reflected the current business operations. Consequently, the application to terminate the Lucas Personnel Services Operations Employees Employee Collective Agreement 2009 was granted.

Lucas Total Contract Solutions (Services) 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