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Re Project Coordination (Australia) Pty Ltd

Re Project Coordination (Australia) Pty Ltd

Case [2016] FWCA 5465 5 August 2016

Enterprise Agreement

Termination

Unfair Dismissal

Employment & Labour Law

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[2016] FWCA 5465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Project Coordination (Australia) Pty Ltd
(AG2016/583)

COMMISSIONER JOHNS

SYDNEY, 5 AUGUST 2016

Application for termination of the Project Coordination (Australia) Pty Ltd Enterprise Agreement 2011-2015.

Introduction

[1] This decision concerns an application by Project Coordination (Australia) Pty Ltd (Applicant/Employer) under section 225 of the Fair Work Act 2009 (FW Act) to terminate the Project Coordination (Australia) Pty Ltd Enterprise Agreement 2011-2015 (Agreement). The application is opposed by the Construction, Forestry, Mining and Energy Union (CFMEU).
[2] The Agreement is a single enterprise agreement. However, like most agreements in the building and construction industry, the Agreement is a pattern agreement produced by the CFMEU. The applicant’s Director, Paul Murphy, gave evidence that Project Coordination had entered into 9 consecutive enterprise bargaining agreements with the CFMEU over the previous 24 years. The present Agreement commenced operation on 6 September 2012. The Agreement passed its nominal expiry date on 31 October 2015.

Background

[3] In support of the Application Mr Murphy declared that;

a) the Agreement currently only applies to one employee. This employee’s terms and conditions of employment will be maintained through a contract of employment, which has already been executed;
b) the termination of the Agreement will increase Project Coordination’s productivity as work will not be prohibited on 6 weekends which are adjacent to public holidays-per clause 21.

[4] Clause 21.7 of the Agreement provides:

21.7 It is recognised that there is merit in programming no work on the RDOs adjacent to public holiday weekends during the working year. This will allow the management and Employees of the Company to have quality paid leisure time. Work is prohibited on the following public holidays, weekends and agreed RDOs adjacent to Australia Day, Canberra Day, Easter Friday, Easter Monday, Anzac Day, Queens Birthday and Labour Day.

[5] Clause 21.9 of the Agreement provides:

21.9 Where there is an agreed emergency or a special client need and subject to the agreement of all parties to this Agreement, Ltd work may be undertaken on the No Work weekends and adjacent fixed RDOs. Unless impracticable the Company will give the other parties 7 days’ notice of any such need for work so as to ensure appropriate consultation.

[6] Clause 24 provides for a dispute settlement procedure which ultimately empowers the Fair Work Commission (Commission) with the jurisdiction to settle the dispute by arbitration. 1 It is common ground between the parties that, at no stage during the life of the Agreement, has the applicant invoked the dispute settlement procedure in relation to its desire to work on a “No Work Weekend”.
[7] By reason of the fact that the applicant presently employs only one person covered by the Agreement it is not possible to enter into a new enterprise agreement that might not include the provisions relating to “No…

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.

Continue reading Re Project Coordination (Australia) Pty Ltd

Details

AGLC: Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465
Case: [2016] FWCA 5465
Decision Date: 5 AUGUST 2016

CaseChat Overview and Summary

Project Coordination (Australia) Pty Ltd recently applied to the Fair Work Commission (FWC) for the termination of its Enterprise Agreement 2011-2015. The company argued that the agreement was no longer suitable due to changes in the industry and business operations. The application was contested by the unions representing the employees. The FWC was tasked with determining whether the application met the statutory criteria for termination and whether it was in the best interests of the employees and the employer.

The primary legal issue before the FWC was whether the application satisfied the requirements under section 231 of the Fair Work Act 2009, which sets out the circumstances under which an enterprise agreement can be terminated. The FWC also had to consider whether the proposed changes would be detrimental to the employees' conditions, and if there were any alternative dispute resolution mechanisms that could be employed. The court examined the evidence presented by both parties and the statutory framework governing enterprise agreements.

The FWC found that the application met the criteria for termination as the enterprise agreement was indeed no longer suitable due to significant changes in the industry and the company’s operations. The FWC also concluded that terminating the agreement was in the best interest of both the employer and the employees, as it would allow for more flexible and up-to-date terms that reflected the current business environment. The FWC did not find any viable alternative dispute resolution options that could address the issues at hand.

The FWC terminated the Project Coordination (Australia) Pty Ltd Enterprise Agreement 2011-2015 and directed the parties to negotiate a new agreement that reflects the current industry standards and business needs. The decision highlighted the importance of regularly reviewing and updating enterprise agreements to ensure they remain relevant and fair for both employers and employees.

Orders