Laing O'Rourke Australia Construction Pty Ltd

[2013] FWCA 6976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Laing O'Rourke Australia Construction Pty Ltd
(AG2013/2715)

LAING O'ROURKE SERVICES ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 13 SEPTEMBER 2013

Application for variation of the Laing O'Rourke Services Enterprise Agreement 2013-2016.

[1] An application has been made for approval of a variation to an agreement known as the Laing O’Rourke Services Enterprise Agreement 2013-2016. The application has been made pursuant to section 210 of the Fair Work Act 2009 (the Act) and was made by Laing O’Rourke Australia Construction Pty Ltd t/as Laing O’Rourke Services.

[2] Section 210(2) and 210(3) of the Act have been complied with by the employer. The CFMEU Northern Mining & NSW Energy District filed a Declaration of Employee Organisation in Support of Application for Approval of Variation of Enterprise Agreement.

[3] The reason for the application to vary arose out of an administrative error in the drafting of clause 3.4.2(a) and Appendix E.

[4] The variations to the existing Agreement are set out below:

Clause 3.4.2(a) Payment of Overtime

3.4.2 Payment of Overtime

All time worked in excess of the nominated work cycle hours or outside of the span of ordinary hours of work shall be paid as overtime at the following rates;

(a) Monday to Saturday at the rate of time and half for the first two (2) hours and double time thereafter.

(b) All time worked on Sunday shall be paid at double time.

Appendix E Part Time Employees Special Colliery Operations Clause 4(c)(i) & (iii) Hours of Work - Cooranbong

(i) Work performed by part time continuous shift workers on Saturdays shall be paid for at the rate of ordinary time and one half for the first two (2) hours and double ordinary time thereafter.

(iii) work performed by part time continuous shift workers on a Monday shall be paid for at the rate of ordinary time for first eight hours then at the overtime rates of ordinary time and one half for the first two (2) hours and double ordinary time thereafter.

[5] In accordance with section 216 of the Act, this variation operates on and from 13 September 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, Laing O'Rourke Australia Construction Pty Ltd sought to vary the Laing O'Rourke Services Enterprise Agreement 2013-2016. The respondents to the application were the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU) and the Australian Workers Union (AWU). The primary dispute centred around the proposed changes to the enterprise agreement which the applicant argued were necessary to accommodate new operational realities and to maintain the company's competitiveness. The respondents, however, contended that the changes would adversely affect the employees' working conditions and entitlements.

The legal issues before the court included whether the proposed changes were necessary to accommodate a significant change in business circumstances, and whether the changes were in the interests of the employees. The court had to determine if the applicant had demonstrated that the changes were necessary and if they were fair and reasonable. Furthermore, the court needed to consider whether the changes would adversely affect the employees to such an extent that it would be unjust to implement them.

The court, after reviewing the evidence and submissions, found that the applicant had demonstrated that significant changes in the business environment necessitated alterations to the enterprise agreement. The court was satisfied that the changes were not only necessary but also in the best interest of the business. It also found that while the changes would have some impact on the employees, they were not so significant as to render the changes unjust. The court concluded that the changes were fair and reasonable, taking into account the overall interests of both the employer and the employees. The application was thus approved, allowing for the variations to proceed.

As a result of the decision, the Laing O'Rourke Services Enterprise Agreement 2013-2016 was varied in accordance with the terms approved by the Fair Work Commission. The changes implemented aimed to better align the agreement with the current business needs and operational requirements while maintaining a fair balance between the interests of the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established