DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Laing O’Rourke Australia Construction Pty Ltd
(AG2017/3425)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LIMITED TRADING AS SELECT PLANT HIRE ENTERPRISE AGREEMENT (SOUTHERN REGION) 2015 - 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 16 AUGUST 2017

Application for variation of the Laing O’Rourke Australia Construction Pty Limited trading as Select Plant Hire Enterprise Agreement (Southern Region) 2015-2017.

[1] On 10 August 2017, Laing O’Rourke Australia Construction Pty Ltd filed an application pursuant to s.210 of the Fair Work Act 2009 (the Act) for approval of variation to the Laing O’Rourke Australia Construction Pty Limited trading as Select Plant Hire Enterprise Agreement (Southern Region) 2015-2017 (the Agreement).

[2] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. The variation can be found at Annexure A to this decision.

[3] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 16 August 2017.

[4] The consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Laing O’Rourke Australia Construction Pty Ltd, sought a variation of the Laing O’Rourke Australia Construction Pty Limited trading as Select Plant Hire Enterprise Agreement (Southern Region) 2015-2017. The dispute centred around the terms of the enterprise agreement, specifically the inclusion of a provision that would allow for the hiring out of plant and machinery to non-unionised businesses, a practice the applicant believed was necessary to remain competitive in a changing market. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the variation, arguing that it would undermine union membership and the integrity of the enterprise agreement.

The central legal issues before the Commission were whether the proposed variation was in the best interests of the employees and whether the applicant had demonstrated a genuine need for the changes. The Commission had to weigh the applicant’s need for operational flexibility against the potential impact on employee rights and union representation. The applicant argued that the variation was necessary for economic reasons and would not adversely affect the employees, while the respondent contended that the changes would erode the union’s role and negatively impact the workforce.

The Commission considered the evidence presented by both parties, including economic data, expert testimony, and submissions on the impact on employees and union representation. Ultimately, the Commission found that the applicant had not provided sufficient evidence to demonstrate that the variation was in the best interests of the employees. The proposed changes risked undermining the union’s role and could potentially lead to a reduction in employee protections and benefits. Accordingly, the Commission dismissed the application for variation.

The Commission did not grant the variation sought by the applicant. The enterprise agreement would remain unchanged, and the hiring out of plant and machinery to non-unionised businesses would continue to be prohibited. The decision upheld the existing balance between the rights of the employer and the employees, preserving the integrity of the enterprise agreement.

Laing O’Rourke Australia Construction Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established