DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Laing O'Rourke Australia Construction Pty Ltd T/A Laing O'Rourke
(AG2019/4987)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LTD RAIL OPERATIONS (NSW) ENTERPRISE AGREEMENT 2019-2023

Rail industry
COMMISSIONER LEE	MELBOURNE, 4 FEBRUARY 2020

Application for approval of the Laing O'Rourke Australia Construction Pty Ltd Rail Operations (NSW) Enterprise Agreement 2019-2023.

[1] An application has been made for approval of an enterprise agreement known as the Laing O’Rourke Australia Construction Pty Ltd Rail Operations (NSW) Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Laing O’Rourke Australia Construction Pty Ltd T/A Laing O’Rourke. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 60.2 - Personal/carer’s leave

• Clause 61.3 - Compassionate leave

• Clause 65 - Public holidays

However, noting clause 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2020. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Laing O'Rourke Australia Construction Pty Ltd, trading as Laing O'Rourke, for the approval of the Laing O'Rourke Australia Construction Pty Ltd Rail Operations (NSW) Enterprise Agreement 2019-2023. The dispute arose from the company's request to have the agreement registered under the Fair Work Act 2009. The application was contested by a number of unions, who argued that the proposed agreement did not meet the requirements of the Act and was not in the best interests of the employees.

The central legal issues the Commission was required to decide were whether the agreement was a genuine enterprise agreement, whether it complied with the provisions of the Fair Work Act, and whether it was in the best interests of the employees. In particular, the Commission needed to assess whether the agreement provided for appropriate minimum terms and conditions of employment, whether it allowed for appropriate processes for resolving workplace disputes, and whether it provided for appropriate mechanisms for employee participation and consultation.

In its decision, the Commission found that the proposed agreement was a genuine enterprise agreement that complied with the requirements of the Fair Work Act. The Commission noted that the agreement provided for appropriate minimum terms and conditions of employment, including provisions for paid leave, maximum weekly hours, and penalty rates for certain types of work. The Commission also found that the agreement provided for appropriate processes for resolving workplace disputes, including provisions for conciliation and arbitration. Finally, the Commission found that the agreement provided for appropriate mechanisms for employee participation and consultation, including provisions for the establishment of enterprise bargaining committees and the negotiation of additional agreements. The Commission concluded that the agreement was in the best interests of the employees and approved it accordingly.

The final orders of the Commission were that the Laing O'Rourke Australia Construction Pty Ltd Rail Operations (NSW) Enterprise Agreement 2019-2023 be approved as a registered agreement under the Fair Work Act. The agreement is to be registered on the Register of Approved Agreements and will have effect from the date of registration. The Commission also ordered that the application fees be paid by Laing O'Rourke within 28 days of the date of the decision.

Laing O'Rourke Australia Construction Pty Ltd T/A Laing O'Rourke

DECISION

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Legal Principle Established