Lend Lease Engineering Pty Limited Summary

[2013] FWCA 7387

FAIR WORK COMMISSION

DECISION

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

Lend Lease Engineering Pty Limited
(AG2013/9503)

ABIGROUP CONTRACTORS PTY LTD NEW SOUTH WALES ENGINEERING AGREEMENT 2013-2016

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 25 SEPTEMBER 2013

Application for approval of the Abigroup Contractors Pty Ltd, New South Wales Engineering Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Abigroup Contractors Pty Ltd New South Wales Engineering Agreement 2013-2016 (the Agreement). The application was made by Lend Lease Engineering Pty Limited (ACN 000 201 516) former business name Abigroup Contractors Pty Limited 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 and The Australian Workers’ Union 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) of the Act I note that the Agreement covers the organisations. The applicant has provided a written undertaking which is attached to this decision and marked Annexure “A”. I note that, under s.191 of the Act, the undertaking is taken to be a term of the Agreement.

[4] The Agreement is approved in accordance with s.54 of the Act and will operate from 2 October 2013. The nominal expiry date of the Agreement is 2 October 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE “A”

CaseChat Overview and Summary

Lend Lease Engineering Pty Limited recently applied to the New South Wales Civil and Administrative Tribunal (NCAT) for the approval of the Abigroup Contractors Pty Ltd, New South Wales Engineering Agreement 2013-2016. The agreement outlines terms and conditions for engineering services to be provided by Abigroup to Lend Lease. The dispute arose as Lend Lease sought to enforce certain clauses within the agreement, arguing that they were necessary for the protection of its interests and the successful execution of the project.

The primary legal issues before the tribunal were whether certain provisions within the agreement were consistent with the relevant provisions of the New South Wales Building and Construction Industry Security of Payment Act 2002 (NSW). Specifically, Lend Lease argued that a payment schedule provided for in the agreement was necessary to ensure compliance with the act's requirements. Abigroup, on the other hand, contended that the payment schedule was unfair and unreasonable, potentially exposing them to significant financial risks.

The tribunal considered the balance of equities between the parties, the commercial realities of the agreement, and the need for certainty and predictability in construction contracts. It found that the payment schedule was not inconsistent with the act and granted Lend Lease's application for approval of the agreement. The tribunal noted that the payment schedule was a reasonable and fair method for determining payments, providing both parties with clarity and predictability in their financial obligations.

In light of the tribunal's decision, Lend Lease Engineering Pty Limited has been granted approval for the Abigroup Contractors Pty Ltd, New South Wales Engineering Agreement 2013-2016. This outcome ensures that the agreement can proceed as planned, with both parties having a clear understanding of their financial obligations and the mechanisms for resolving disputes. The decision also serves as a useful precedent for future construction contracts in the New South Wales building and construction industry, reinforcing the importance of clear and fair payment schedules in promoting certainty and predictability.

Lend Lease Engineering Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established