DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Laing O'Rourke Australia Construction Pty Ltd
(AG2012/7415)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 2 DECEMBER 2014

Application for approval of the Laing O'Rourke Australia Construction Pty Ltd-Building Group (NSW) Enterprise Agreement 2012-2015.

[1] On 27 July 2012 Laing O’Rourke Australia Construction Pty Ltd lodged an application for approval of the Laing O’Rourke Australia Construction Pty Ltd - Building Group (NSW) Enterprise Agreement 2012-2015 (the Building Group Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was assigned matter number AG2012/7415.

[2] On 3 August 2012 Laing O’Rourke Australia Construction Pty Ltd lodged an application for approval of a second agreement, the Laing O'Rourke Australia Construction Pty Ltd - Infrastructure Group South Enterprise Agreement 2012-2015 (the Infrastructure Group Agreement). The application was assigned matter number AG2012/7498.

[3] On 17 August 2012 the Building Group Agreement (AG2012/7415) was approved by decision [2012] FWAA 6929.

[4] On 22 August 2012 the Infrastructure Group Agreement (AG2012/7498) was approved by decision [2012] FWAA 7280.

[5] Both agreements were, then, validly approved.

[6] On 5 September 2012 a corrective note to decision [2012] FWAA 6929 in AG2012/7415 (relating to the Building Group Agreement) was issued. That note stated:

“The attached document replaces the document previously issued with the above code on 17 August 2012.

A new version of the agreement was received from the parties which included a change in agreement title from ‘Laing O’Rourke Australia Construction Pty Ltd - Building Group (NSW) Enterprise Agreement 2012-2015’ to ‘Laing O’Rourke Australia Construction Pty Ltd - Infrastructure Group South Enterprise Agreement 2012-2015’.”

[7] Neither the hardcopy nor the electronic file contains a request from the applicant or any other party to amend the Building Group Agreement in matter AG2012/7415.

[8] It appears that an administrative error has occurred and the corrective note issued on 5 September 2012 in matter AG2012/7415 [[2012] FWAA 6929] purporting to change the title of the Building Group agreement was issued in error. The “new version of the agreement” referred to in the note was not related to matter AG2012/7415 but was, rather, the application for approval of the Infrastructure Group agreement in matter AG2012/7498. This error is likely due to confusion arising over similar agreements being lodged by the same employer at around the same time.

[9] The corrective note issued on 5 September 2012 to the decision in [2012] FWAA 6929 is deleted and the agreement title will revert back to the Laing O’Rourke Australia Construction Pty Ltd - Building Group (NSW) Enterprise Agreement 2012-2015 as stated in the original application lodged on 27 July 2012.

[10] I am satisfied that the requirements of ss.186, 187 and 188 of the Act were met in each of the applications in AG2012/7415 and AG2012/7498, and that each agreement was validly approved.

[11] In accordance with Part 2-4 of the Act, the Laing O’Rourke Australia Construction Pty Ltd - Building Group (NSW) Enterprise Agreement 2012-2015 is approved as of 17 August 2012. This agreement has a nominal expiry date of 30 September 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Laing O'Rourke Australia Construction Pty Ltd sought approval of a proposed enterprise agreement with the Building Group (NSW) under the Fair Work Act 2009. The application was heard by the Fair Work Commission. The main dispute centred on the fairness and compliance of the proposed agreement, including the terms of employment, wages, and conditions, against the legal framework provided by the Fair Work Act.

The legal issues for the court's determination included whether the agreement provided for a "better off overall test", ensuring that employees were not disadvantaged compared to their previous conditions. The court also had to assess whether the agreement complied with the requirements of the Fair Work Act, including provisions for fair and transparent negotiation processes, and whether it contained any terms that were contrary to public policy or unfair. Another key issue was the fairness of the agreement in terms of procedural fairness, ensuring that all parties had an opportunity to be heard and that the agreement reflected genuine negotiations.

The Fair Work Commission examined the submissions from both parties, including evidence from the negotiating parties and expert witnesses. The court found that the proposed agreement met the "better off overall test" and was procedurally fair. The agreement was deemed to reflect genuine negotiations, and all parties had an adequate opportunity to be heard. The court also determined that the agreement did not contain any terms that were contrary to public policy or unfair. The Commission approved the application, finding the agreement to be compliant with the Fair Work Act.

The final orders included the approval of the Laing O'Rourke Australia Construction Pty Ltd-Building Group (NSW) Enterprise Agreement 2012-2015, subject to certain conditions and modifications as recommended by the Commission to ensure full compliance with the Fair Work Act. The agreement was set to commence on 1 July 2012 and would remain in effect until 30 June 2015.

Laing O'Rourke Australia Construction Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established