Lend Lease Engineering Pty Ltd

[2016] FWCA 231

[2016] FWCA 231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Lend Lease Engineering Pty Ltd
(AG2015/7608)

LEND LEASE ENGINEERING PTY LTD ENGINEERING AND INFRASTRUCTURE SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2013-2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 13 JANUARY 2016

Application for variation of the Lend Lease Engineering Pty Ltd Engineering and Infrastructure South Australia Enterprise Agreement 2013-2016.

[1] On 10 December 2015 Lend Lease Engineering Pty Ltd (Lend Lease) lodged an application for the variation of the Lend Lease Engineering Pty Ltd Engineering and Infrastructure South Australia Enterprise Agreement 2013-2016 (the Agreement). The variation application was made pursuant to s.210 of the Fair Work Act 2009 (the FW Act).

[2] The application was the subject of a telephone conference on 17 December 2015. At this conference I expressed reservations over the extent to which the variation appeared to insert two new classifications into the Agreement and invited the provision of additional information relative to this issue.

[3] Lend Lease subsequently provided additional information and submissions. The application was the subject of a second telephone conference on 11 January 2016. At this conference Lend Lease was represented by Mr Earls, of counsel. Ms Dooley represented the Construction, Forestry, Mining and Energy Union (CFMEU) and Mr Mateos represented the Australian Workers’ Union (AWU). Both the AWU and the CFMEU are unions covered by the Agreement. Further, neither union opposes the variation application. This conference concluded on the basis that Lend Lease advised that it was prepared to provide further information and/or undertakings to address any outstanding concerns with respect to the variation application.

[4] Section 207 of the FW Act sets out the basis upon which an Enterprise Agreement variation may be sought. Sections 208, 209 and 210 set out requirements for the making of a variation and variation application. Section 211 details the requirements which, if met, then obligate the Fair Work Commission (the FWC) to approve a variation of an agreement. In this instance I am satisfied that the process followed by Lend Lease met all the requirements for approval. The only issues that arise relative to the variations to the Agreement go to changes to the scope of the Agreement.

[5] I have noted the submissions made by Lend Lease to the effect that an agreement variation can amend the scope of an agreement. Further, it is clear that scope variations in a variety of different forms had been approved by the FWC under the FW Act.

[6] Notwithstanding this, the variation of an agreement so as to enlarge the scope of that agreement by including classifications not previously covered by an agreement may give rise to the potential for issues associated with whether all of the requirements in s.211(3) have been met. Those considerations would need to take into account various Federal Court decisions. 1

[7] There are two variations relevant to the Agreement scope provisions. The first (clause 1(e)) relates to the operation of this Agreement in relation to site specific agreements. Lend Lease has explained this variation on the basis that it seeks to address issues that follow the Full Federal Court decision in CFMEU v John Holland. 2 I am satisfied that this variation simply clarifies the intention of the parties and is consistent with the provisions of ss.207 and 211 so that it does not give rise to any issues associated with the application of future agreement making rights.

[8] A second variation relates to the addition of two specific classifications, namely that of Chainman and Senior Chainman into Appendix A1.2. In this respect I have agreed with the Lend Lease submission that the two additional specified classifications simply clarify the existing coverage arrangements and do not extend that coverage.

[9] Clause 1(e) defines the Agreement coverage on the basis of the classifications in Appendix 1. This clause also incorporates the terms and the conditions of the Building and Construction General On-Site Award 2010 (the Award), into the Agreement.

[10] Appendix 1 is titled “Wage Rates” and refers to the various Award classifications. Appendix A 1.2 establishes a basis for the translation of various Award classifications to the wage levels in the Agreement. In this context it is difficult to regard A 1.2 as defining the coverage of the Agreement itself and it appears far more logical to regard the Award as the defining mechanism for coverage of the Agreement. The Award classifies a Chainperson at the CW/ECW1 Level.

[11] Consequently, I have concluded that the specification of the Chainman classifications in Appendix A 1.2 does not change the scope of the Agreement and hence does not give rise to potential concern relative to s.211 of the FW Act.

[12] The Agreement variations are approved on this basis.

[13] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. I approve the variation which is attached to this decision as Annexure A.

[14] A consolidated version of the Agreement, as varied, is provided with this decision. The variation is approved and will operate from the date of this decision.

ANNEXURE A

 1   See, for example, MI & E Holdings and Communication, Electrical, Electronic, Energy, Information, Plumbing, Postal and Allied Services Union of Australia, [2013] FCA 944

 2 [2015] FCAFC 16

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