Laing O'Rourke Australia Construction Pty Ltd

[2014] FWCA 1438

[2014] FWCA 1438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Laing O'Rourke Australia Construction Pty Ltd
(AG2013/11979)

LAING O'ROURKE CSG, AND ASSOCIATED INFRASTRUCTURE GREENFIELDS AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 6 MARCH 2014

Application for variation of the Laing O'Rourke CSG, and Associated Infrastructure Greenfields Agreement 2011-2015.

[1] This application is made by Laing O'Rourke Australia Construction Pty Ltd (“the Company”) to vary the Laing O'Rourke CSG, and Associated Infrastructure Greenfields Agreement 2011-2015 (“the Agreement”) pursuant to s.217 of the Fair Work Act 2009 (“the Act”) to remove ambiguity or uncertainty. The application followed a dispute conference involving the relevant parties (including the employee organisations covered by the Agreement). These parties have indicated their support for this application, and the fact - for jurisdictional purposes - of the existence of an ambiguity or uncertainty in the Agreement.

[2] In this regard, the Act provides as follows:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

[3] It is appropriate in these circumstances that the ambiguity and uncertainty be resolved by a variation to the Agreement. The Agreement will be varied by:

(a) Deleting clause 5.3(e); and

(b) Replacing it with new clause 5.3(e):

“In the circumstances where an Employee is required to work two hours or more overtime after the ordinary ceasing time, Monday to Friday, a meal will be provided or a payment of $10.50 meal allowance will be paid. In addition the Employee will be entitled to a paid crib break for 30 minutes prior to the overtime commencing or be paid 30 minutes at the overtime rate of double time in lieu of the crib break.

In the circumstances where no ordinary hours are worked on a Saturday or Sunday an Employee required to work more than eight (8) hours overtime on either day will be provided with a meal or paid $10.5 0 meal allowance in lieu of a meal and will be entitled to a crib break of thirty (30) minutes or be paid thirty (30) minutes at the overtime rate of double time in lieu of the crib break.

Employees entitled to the Living Away From Home Allowance prescribed in this Agreement are not entitled to the Overtime Meal Allowance.”

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

[5] This variation under s.217(1) of the Act operates from the date of this decision.

SENIOR DEPUTY PRESIDENT

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