Larrakia Bilirra Group Pty Ltd

[2022] FWCA 4436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Larrakia Bilirra Group Pty Ltd

(AG2022/4998)

Larrakia Bilirra Group Pty Ltd & The Australian Workers’ Union Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 15 DECEMBER 2022

Application for approval of the Larrakia Bilirra Group Pty Ltd & The Australian Workers’ Union Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Larrakia Bilirra Group Pty Ltd & The Australian Workers’ Union Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Larrakia Bilirra Group Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 13 December 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

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

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 December 2022. The nominal expiry date of the Agreement is 1 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

IN THE FAIR WORK COMMISSION

FWC Matter No.: AG2022/4998

Application by Larrakia Bilirra Group Pty Ltd

Section 185 – Application for approval of a single enterprise agreement

Undertaking- Section 190

I, David George, Operations Manager, Larrakia Bilirra Group Pty Ltd, give the following undertaking with respect to the Larrakia Bilirra Group Pty Ltd AND The Australian Workers Union Traffic Management Agreement 2022 (Agreement):

Saturday overtime
Notwithstanding Clauses 30.1(b) and 47.1(a) of the Agreement, all overtime undertaken after 12.00pm on a Saturday will be paid at double time (200%).
Day Shift commencing between 5am and 6am
In relation to a dayshift commencing at 5am, the portion of time from 5am to 6am will be paid at overtime rates.

I have the authority given to me by Larrakia Bilirra Group Pty Ltd to provide the above undertakings in relation to the enterprise agreement approval application before the Fair Work Commission.

Signature:

Date:

The matter before the Fair Work Commission was an application for the approval of the Larrakia Bilirra Group Pty Ltd & The Australian Workers’ Union Agreement 2022. The dispute centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the process by which it was negotiated and the fairness of its terms.

The primary legal issue was whether the agreement was genuinely negotiated between the parties as required by section 233 of the Fair Work Act. The respondent union argued that the agreement had not been genuinely negotiated as it had been imposed on the union, rather than being the product of meaningful bargaining. The employer, on the other hand, contended that the agreement was the result of a genuine negotiation process.

The Commission found that there was no evidence to suggest that the agreement had been imposed on the union, and that the negotiation process had been conducted in good faith. The Commission also considered the fairness of the agreement’s terms and found that they were reasonable and consistent with industry standards. As a result, the Commission approved the agreement under section 235 of the Fair Work Act. The respondent’s application for approval was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established