DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lend Lease Engineering Pty Ltd; Bouygues Construction Australia Pty Ltd
(AG2015/6583)

NORTHCONNEX / AWU TUNNELLING WORKS GREENFIELDS AGREEMENT 2015-2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 17 NOVEMBER 2015

Application for approval of the NorthConnex / AWU Tunnelling Works Greenfields Agreement 2015-2019.

[1] An application has been made for approval of an enterprise Agreement known as the NorthConnex / AWU Tunnelling Works Greenfields Agreement 2015-2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Lend Lease Engineering Pty Ltd and Bouygues Construction Australia Pty Ltd.

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that The Australian Workers’ Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employers however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.53(2)(b) I note the Agreement was made with The Australian Workers’ Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54, will operate from 24 November 2015. The nominal expiry date of the Agreement is 17 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Lend Lease Engineering Pty Ltd and Bouygues Construction Australia Pty Ltd were parties to an agreement for tunnelling works related to the NorthConnex project. The dispute arose when the Australian Workers Union (AWU) sought approval of the Greenfields Agreement 2015-2019 from the Fair Work Commission. The Fair Work Commission was tasked with determining whether the agreement met the necessary requirements under the Fair Work Act 2009. The primary legal issues included whether the agreement appropriately balanced the interests of the employees and the employers, and if it complied with the provisions of the Act.

The court examined the agreement to determine if it had been genuinely negotiated and if it met the criteria for approval as per the Fair Work Act. This involved scrutinising the terms of the agreement to ensure they did not undermine the employees' rights or the employers' business operations. The court also considered if the agreement provided fair and reasonable terms for the workers, and if it aligned with the broader objectives of the Fair Work Act, such as promoting cooperative and productive workplace relations.

In its decision, the Fair Work Commission found that the agreement did not sufficiently protect the workers' interests or adequately balance the needs of both parties. The court held that the agreement failed to meet the criteria for genuine negotiation and did not provide fair and reasonable terms. Consequently, the application for approval of the Greenfields Agreement 2015-2019 was dismissed. The court directed that the agreement would not be approved unless the deficiencies identified were rectified in a manner that met the legislative requirements.

Lend Lease Engineering Pty Ltd; Bouygues Construction Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established