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…

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.

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Details

AGLC: Acciona Infrastructure Projects Australia Pty Ltd [2021] FWCA 1412
Case: [2021] FWCA 1412
Decision Date: 23 MARCH 2021

CaseChat Overview and Summary

In the matter of the Fair Work Act 2009, Acciona Infrastructure Projects Australia Pty Ltd applied to the Fair Work Commission for approval of the AIPA New South Wales Enterprise Agreement 2020. The application was opposed by the NSW Teachers Federation, the Construction, Forestry, Maritime, Mining and Energy Union, and the Shop, Distributive and Allied Employees Association. The dispute centred on whether the proposed enterprise agreement met the statutory requirements for approval, particularly regarding the application of the better off overall test and the fairness of the agreement's provisions.

The court was required to determine whether the agreement was procedurally and substantively fair. This involved assessing if the agreement had been negotiated in good faith, if the employees had been adequately informed and consulted, and if the terms of the agreement provided a fair and reasonable outcome for the employees. The court also needed to consider if the agreement complied with the Fair Work Act's provisions and whether it met the better off overall test, which required the employees to be at least as well off under the new agreement as they would be under their previous terms and conditions.

The Fair Work Commission determined that the agreement was fair and reasonable, and it met the better off overall test. The commission found that the negotiation process was conducted in good faith, and the employees had been adequately informed and consulted. The terms of the agreement were considered fair, providing a reasonable balance of benefits and obligations for both the employer and the employees. The commission concluded that the agreement complied with the statutory requirements and was therefore approved.

The Fair Work Commission approved the AIPA New South Wales Enterprise Agreement 2020, finding it to be fair and reasonable and meeting the better off overall test. The commission's decision was based on the thorough and balanced negotiation process, the adequate information and consultation provided to the employees, and the fair terms of the agreement. The commission's approval of the agreement signifies its compliance with the statutory requirements and its suitability for implementation.

Orders