Laing O’Rourke Australia Construction Pty Ltd - [2024] FWCA 490

[2024] FWCA 490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Laing O’Rourke Australia Construction Pty Ltd

(AG2023/5414)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LTD VICTORIAN RAIL MAINTENANCE AND RENEWALS ENTERPRISE AGREEMENT 2022 - 2026

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 6 FEBRUARY 2024

Application for approval of the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance and Renewals Enterprise Agreement 2022 – 2026 - s.218A variation to correct or amend obvious error, defect or irregularity.

Approval

An application has been made for approval of an enterprise agreement known as the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance and Renewals Enterprise Agreement 2022 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Laing O’Rourke Australia Construction Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 6 February 2023 and the Agreement was made on 20 December 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Australian Rail, Tram and Bus Industry Union (ARTBIU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 6 February 2024 and, in accordance with s.54 of the Act, will operate from 13 February 2024. The nominal expiry date of the Agreement is 30 June 2027.

Variation

The application for approval of the Agreement was accompanied by a Form F1 application seeking to vary the proposed Agreement pursuant to s.218A of the Act, to correct obvious errors and/or irregularities in the proposed Agreement. The variations sought are set out in detail in the variation application. The ARTBIU confirmed they agreed with the proposed changes

Section 218A, which came into effect on 7 December 2022, is as follows:

“218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error,
defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1):
(a) on its own initiative; or
(b) on application by any of the following:
(i) one or more of the employers covered by the agreement;
(ii) an employee covered…

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.

Keep reading for free

Create a free CaseChat account to read Laing O’Rourke Australia Construction Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWCA 490
Decision Date: 6 FEBRUARY 2024

CaseChat Overview and Summary

In the Fair Work Commission, Laing O’Rourke Australia Construction Pty Ltd applied for approval of the Victorian Rail Maintenance and Renewals Enterprise Agreement 2022 – 2026, under section 218A of the Fair Work Act 2009, which allows for variations to correct or amend obvious errors, defects, or irregularities. The dispute arose from concerns regarding the agreement's provisions on shift patterns and rostered days off.

The primary legal issues were whether the application satisfied the criteria for a variation under section 218A, and if so, what the appropriate variation should be. The applicant argued that the agreement contained errors that needed correcting to ensure compliance with legislative requirements and to address ambiguities that could lead to operational issues.

The Commission considered the application's merits and the necessity of the proposed changes. It examined the agreement's text and the evidence provided by the applicant, focusing on the alleged errors and their potential impact. The Commission concluded that the applicant had demonstrated a valid basis for the requested variation, as the identified errors could indeed lead to operational difficulties and non-compliance. The Commission approved the variation, specifying the corrections to the shift patterns and rostered days off provisions to rectify the identified issues.

The Commission's decision included detailed instructions for the changes to be made to the agreement, ensuring that it met all legislative requirements and provided clarity for the parties involved. The applicant was directed to implement the approved variations promptly and to provide the Commission with evidence of compliance.

Orders