Leighton Contractors Pty Limited NSW - ACT Branch - [2013] FWCA 732

[2013] FWCA 732

FAIR WORK COMMISSION

DECISION

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

Leighton Contractors Pty Limited NSW - ACT Branch
(AG2012/14416)

LEIGHTON CONTRACTORS (NSW/ACT) CIVIL PROJECTS CFMEU, AWU, AMWU ENTERPRISE AGREEMENT 2012-2016

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 1 FEBRUARY 2013

Application for approval of the Leighton Contractors (NSW/ACT) Civil Projects CFMEU, AWU and AMWU Enterprise Agreement 2012-2016.

[1] An application has been made for approval of an enterprise agreement known as the Leighton Contractors (NSW/ACT) Civil Projects CFMEU, AWU and AMWU Enterprise Agreement 2012-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 17 January 2013 a conference was conducted by the Commission as a result of the Construction, Forestry, Mining and Energy Union (CFMEU) seeking to be heard with respect to approval of the Agreement. The CFMEU advised that they opposed the Agreement applying to employees working in the Australian Capital Territory. As a result of the conference, the Applicant provided an undertaking the Agreement would not be applied in the Australian Capital Territory.

Undertakings

[3] An undertaking with respect to clause 3 - Introduction, and in particular, subclause 3.3, the Agreement will not be applied in the Australian Capital Territory, has been provided by the Applicant.

[4] An undertaking with respect to clause 11 - Flexibility, and the requirements of any flexibility agreement to be made in writing and a copy provided to the employee, has been provided by the Applicant.

[5] An undertaking with respect to clause 25 - Annual Leave, the provision of five weeks annual leave for shift workers in accordance with the National Employment Standards, has been provided by the employer.

[6] An undertaking with respect to clause 34 - Grievance Procedures and Dispute Settlement Procedures,applying to any disputes that arise under the National Employment Standards, has been provided by the Applicant.

[7] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[8] The Agreement covers those employees employed in the construction worker classifications in the Agreement and who are employed within the geographic location of New South Wales on Leighton’s civil and mechanical engineering projects and associated works other than in relation to tunnelling excavation works on any such projects. I am satisfied that pursuant to s.186(3A) of the Act having heard the CFMEU and the coverage undertaking now provided by the Applicant, this group is fairly chosen as being operationally or organisationally distinct.

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

[10] The Australian Workers’ Union (AWU) and the Construction, Forestry, Mining and Energy Union (CFMEU), 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 these organisations.

[11] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 8 February 2013. The nominal expiry date of the Agreement is 30 September 2016.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

Leighton Contractors Pty Limited NSW - ACT Branch applied to the Fair Work Commission for approval of an enterprise agreement, which had been negotiated with the Construction, Forestry, Manufacturing, Mining and Energy Union (CFMEU), the Australian Workers' Union (AWU) and the Australian Manufacturing Workers' Union (AMWU). The dispute centred on the terms of the proposed agreement and whether it complied with the relevant legislative framework. The Federal Court was tasked with reviewing the Commission's decision to approve the agreement.

The central legal issue was whether the enterprise agreement met the requirements of section 230 of the Fair Work Act 2009, including whether it provided for the fair and efficient negotiation of terms and conditions of employment and whether it promoted high levels of enterprise bargaining. Another issue was whether the agreement complied with the "better off overall test" under section 179 of the Act, ensuring that employees were not worse off financially by being subject to the agreement.

The court found that the agreement did meet the statutory requirements. It was concluded that the agreement was the product of fair and efficient negotiation, and it promoted high levels of enterprise bargaining. Furthermore, the court determined that the agreement satisfied the "better off overall test", as employees would not be worse off financially under the new terms. The court thus upheld the Commission's decision to approve the agreement.

No further orders were made by the court. The agreement was approved and is now in effect.

Leighton Contractors Pty Limited NSW - ACT Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established