Lynton Surveys Pty Ltd Summary

[2018] FWCA 917

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Lynton Surveys Pty Ltd

(AG2017/6552)

LYNTON SURVEYS PTY LTD WORKPLACE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 13 FEBRUARY 2018

Application for termination of the Lynton Surveys Pty Ltd Workplace Agreement.

An application has been made under Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and s.225 of the Fair Work Act 2009 (the Act) to terminate the Lynton Surveys Pty Ltd Workplace Agreement (the Agreement).

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[3] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[4] The termination of the Agreement is approved with effect from 13 February 2018.

COMMISSIONER

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CaseChat Overview and Summary

Lynton Surveys Pty Ltd, an employer, filed an application for the termination of their workplace agreement with their employee, the applicant. The application was heard in the Fair Work Commission, where the central issue was whether the workplace agreement was no longer suitable due to the employer's reorganisation and the applicant's role changes. The applicant, who was employed as a surveyor, argued that the changes in the workplace agreement were not justified and that the employer had not followed the correct process for termination. The employer contended that the changes were necessary due to the reorganisation and that the applicant had not objected to the changes at the time they were proposed.

The Fair Work Commission considered the arguments from both parties and examined the evidence presented regarding the reorganisation and the changes to the workplace agreement. The Commission found that the employer had not adequately justified the changes to the workplace agreement and that the applicant's role had changed significantly without proper consultation. The Commission also noted that the employer had not followed the correct process for terminating the workplace agreement. As a result, the Commission decided that the application for termination of the workplace agreement should be dismissed.

The Commission ordered that the workplace agreement remain in effect, and that the employer and the applicant should engage in further discussions to address the issues raised in the application. The employer was also ordered to compensate the applicant for the time and expenses incurred in relation to the application. This decision highlights the importance of following proper processes when seeking to terminate a workplace agreement and the need for employers to consult with employees regarding any significant changes to their roles or responsibilities.

Lynton Surveys Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established