Acciona Infrastructure Projects Australia Pty Ltd

[2021] FWCA 1412

[2021] FWCA 1412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Acciona Infrastructure Projects Australia Pty Ltd
(AG2020/3773)

AIPA NEW SOUTH WALES ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 23 MARCH 2021

Application for approval of the AIPA New South Wales Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the AIPA New South Wales Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). It has been made by Acciona Infrastructure Projects Australia Pty Ltd (AIPA/Employer). The Agreement is a single enterprise agreement.

[2] On 18 December 2020, the Australian Workers’ Union (AWU) filed a Form F18 – ‘Declaration of employee organisation in relation to an application for approval of an enterprise agreement. The AWU advised that it did not support the approval of the Agreement. Amongst other things, the AMU outlined that it objected to the approval of the Agreement because it excludes the living away from home allowance (LAHA) provided for in clause 24 of the Building and Construction General On-site Award 2010 (BCGO Award). The BCGO Award is the reference instrument for the purposes of the better off overall test (BOOT).

[3] Also on 18 December 2020. the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) advised that it too opposed the approval of the Agreement. However, it did not file a Form F18.

[4] The matter was allocated to me for consideration on 21 December 2020. On 23 December 2020, my Chambers wrote to AIPA, the AWU and the CFMMEU (together, the Unions) in the following terms:

“The above matter has been allocated to Commissioner Johns for his consideration. On review of the application, the Commission[er] has identified the issue outlined below.

Clause 35 of Agreement:

The Agreement incorporates the Building and Construction General On-site Award 2010 (the Award) where there is no inconsistency. However, there is a direct inconsistency between cl 35 of the Agreement and cl 24 of the Award, because cl 35.6 states “Other than as set out in this clause, no other living away from home, distant work or similar payments or conditions shall apply.”

Clause 35 gives the employer an absolute discretion whether or not to pay the relocation benefits under the clause. In addition, it purports to be a LAHA allowance scheme, but it is not – as there is no entitlement other than at the discretion of the employer.

The provision identified above (clause 35 of the Agreement) is nearly identical to clause 35 of the Lendlease Engineering Pty Ltd Western Sydney Airport Civil Works Enterprise Agreement 2019 (the WSA Agreement), which was approved by Deputy President Cross in [2019] FWCA 5877 (Print PR711635). The WSA Agreement was approved with an undertaking that read: “that provides that employees who would be entitled to LAHA pursuant to the Award will have that entitlement preserved, including payment at the Award rate if that is higher than the Agreement” (at [15]).

The Commissioner invites an undertaking similar to that which was provided in the WSA Agreement matter to resolve the issue. I attach a template undertaking that you make like to use.

Please provide your response to the concern outlined in above as soon as possible, but by no later than close of business on Friday 8 January 2021.”

[5] On 14 January 2021, the Applicant responded to my concern. It contended that the Agreement passed the BOOT. On 22 January 2021, the Unions advised of their continuing opposition to the approval of the Agreement on the grounds previously stated.

[6] On 27 January 2021, I issued directions programming the matter for hearing on 18 March 2021.

[7] On 10 February 2021, the Applicant filed submissions and other materials in support of the approval of the Agreement. On 17 February 2021, the seven appointed employee bargaining representatives filed Form F18As advising that they and the employees they represent support the Agreement being approved. The Unions maintained their opposition to approval of the Agreement.

[8] By consent, the Applicant and the Unions agreed that the application could be decided on the papers. In coming to this decision, I have had regard to all the application documents, emails from the parties, and formal submissions and attachments filed including, without limitation, those in opposition from the Unions.

[9] In applying s.186(2)(d) and the BOOT it is well established that the test requires a "global" or "overall assessment" to be made, requiring "identification of terms which are more beneficial for an employee, terms which are less beneficial and overall assessment of whether an employee would be better off under the agreement".

[10] In the present matter the Agreement contains significant more beneficial terms including the wage rates, the annualised wage increases, the productivity allowance, the travel allowance, and the meal allowance.  Even if the LAHA term as it appears in the Agreement is considered to be a less beneficial term I am satisfied, having carefully considered the relevant BOOT materials and calculations that, overall, in applying a global assessment, the Agreement provides for terms and conditions which are better off overall when compared with the BCGO Award.

[11] In answer to the Unions’ reliance upon the decision of Deputy Present Cross in Lend lease Engineering Pty Ltd Western Sydney Airport Civil Works Enterprise Agreement 2019 [2019] FWCA 5877 I am satisfied that the Agreement in this matter can be distinguished from the enterprise agreement considered by the Deputy President. Significantly so. Consequently, I feel no compunction to require of the Applicant in this matter to provide the undertaking the type required by the Deputy President in the matter that was before him. I do not share the concern in this matter that the Deputy President had in the WSA Agreement matter before him and in respect of which he sought an undertaking.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met, including, without limitation, that the Agreement passes the BOOT.

[13] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[14] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 30 March 2021. The nominal expiry date of the Agreement is 22 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE510766  PR727810>