Mr Gavin Larkin Summary

[2014] FWCA 1567

FAIR WORK COMMISSION

DECISION

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

Mr Gavin Larkin
(AG2014/3757)

POLYSEAL WATERPROOFING (QLD) PTY LTD ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 17 MARCH 2014

Application for termination of the Polyseal Waterproofing (QLD) Pty Ltd Enterprise Agreement 2011.

[1] On 21 February 2014 Mr Gavin Larkin filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Polyseal Waterproofing (QLD) Pty Ltd Enterprise Agreement 2011 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

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.

[3] The application was supported by statutory declarations from the Applicant and the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declarations, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Mr Gavin Larkin applied for the termination of the Polyseal Waterproofing (QLD) Pty Ltd Enterprise Agreement 2011. The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment and workforce composition. The respondent, Polyseal Waterproofing (QLD) Pty Ltd, opposed the application, asserting that the agreement was still relevant and beneficial to both the company and its employees.

The central legal issues before the Commission were whether the changes in the business environment and workforce composition were substantial enough to warrant the termination of the enterprise agreement. The Commission had to consider whether these changes rendered the agreement unworkable or inappropriate and if terminating the agreement would be in the best interests of the employees.

The Commission found that the changes in the business environment and workforce composition were indeed significant. It determined that these changes had fundamentally altered the conditions under which the agreement was made and that the agreement no longer served the interests of the employees. Consequently, the Commission concluded that terminating the agreement was in the best interests of the employees and granted the application for termination. This decision allows the parties to negotiate a new enterprise agreement that better reflects the current realities of their workplace.

Mr Gavin Larkin

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established