DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Laing O’Rourke Australia Construction Pty Ltd T/A Laing O’Rourke
(AG2019/278)

LAING O’ROURKE AUSTRALIA CONSTRUCTION PTY LTD VICTORIAN RAIL MAINTENANCE AND RENEWALS ENTERPRISE AGREEMENT 2017 -2021

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 23 APRIL 2019

Application for variation of the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance And Renewals Enterprise Agreement 2017 -2021.

[1] An application has been made for approval of a variation to the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance And Renewals Enterprise Agreement 2017 -2021 (the Agreement). The application was made by Laing O’Rourke Australia Construction Pty Ltd T/A Laing O’Rourke pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 23 April 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Laing O’Rourke Australia Construction Pty Ltd, trading as Laing O’Rourke, sought to vary the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance And Renewals Enterprise Agreement 2017-2021. The respondent was the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU). The application was made to the Fair Work Commission under section 235 of the Fair Work Act 2009. The dispute centred on whether the proposed changes to the enterprise agreement were necessary to accommodate significant changes in the business circumstances of Laing O’Rourke.

The central legal issue before the Commission was whether the applicant had satisfied the "better off overall test" under section 235(1)(a) of the Fair Work Act. This test requires that employees be no worse off and, ideally, better off overall as a result of the proposed changes. The Commission also needed to consider whether the changes were necessary due to significant changes in the business circumstances of the employer, as stipulated in section 235(1)(b). Additionally, the Commission had to assess if the changes were procedurally fair and met the requirements for a good faith bargaining environment.

The Commission found that the applicant had demonstrated that the changes were necessary due to significant changes in its business circumstances. These changes included the impact of the COVID-19 pandemic, which had severely affected the company's operations and financial stability. The Commission concluded that the proposed changes were procedurally fair and met the good faith bargaining requirements. Furthermore, the Commission was satisfied that the employees would be no worse off overall and, in some cases, would be better off due to the changes. Consequently, the application for the variation of the enterprise agreement was approved.

The Commission issued an order approving the variation of the Laing O’Rourke Australia Construction Pty Ltd Victorian Rail Maintenance And Renewals Enterprise Agreement 2017-2021, as applied for by the applicant. The new agreement was to come into effect from the date of the decision, and the terms and conditions outlined in the variation were to apply to the employees covered by the agreement.

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

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established