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

[2013] FWCA 4629

FAIR WORK COMMISSION

DECISION

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

Laing O'Rourke Construction Pty Ltd T/A Laing O'Rourke Services
(AG2013/1856)

LAING O'ROURKE SERVICES ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 16 JULY 2013

Application for approval of the Laing O'Rourke Services Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Laing O’Rourke Services Enterprise Agreement 2013 (the Agreement). The application was made by the Laing O’Rourke Australia, Construction Pty Ltd trading as Laing O’Rourke Services pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union 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) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved in accordance with s.54 of the Act and will operate from 23 July 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

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CaseChat Overview and Summary

Laing O'Rourke Construction Pty Ltd, trading as Laing O'Rourke Services, applied to the Fair Work Commission for approval of the Laing O'Rourke Services Enterprise Agreement 2013. The agreement was made under section 176 of the Fair Work Act 2009 and involved a dispute between the employer and the Building and Construction General On-Site Union. The union objected to the approval of the agreement on the grounds that it failed to meet the "better off overall test" as outlined in the Act. The case required the Commission to determine whether the proposed agreement provided employees with terms and conditions no less favourable than those provided by the relevant award or registered agreement.

The primary issue before the Commission was whether the agreement satisfied the "better off overall test," which requires that employees be at least as well off under the new agreement as they would be under the applicable award. This involved a comparison of the terms and conditions, including pay rates, hours of work, leave entitlements, and other benefits, to determine if the proposed agreement met the statutory requirements. The union argued that the agreement did not meet the necessary standard, particularly in relation to overtime rates and shift penalties.

In its decision, the Fair Work Commission found that the proposed agreement did indeed meet the better off overall test. The Commission detailed that the comparison of the terms and conditions showed that employees would be no worse off and, in some cases, better off under the new agreement. The Commission considered various factors, including the impact of the agreement on overtime rates, shift penalties, and other entitlements, concluding that the agreement provided terms and conditions that were at least as good as those provided by the applicable award.

The Commission approved the Laing O'Rourke Services Enterprise Agreement 2013, thereby resolving the dispute in favour of the employer. The union's objections were dismissed, and the agreement was approved as meeting the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established