Lendlease Bouygues Joint Venture Summary

[2018] FWCA 3226

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Lendlease Bouygues Joint Venture

(AG2018/1373)

NorthConnex / AWU & CEPU Systems Fitout and Commissioning Greenfields Agreement 2017-2021

Building, metal and civil construction industries
Commissioner Cirkovic	MELBOURNE, 7 JUNE 2018

Application for approval of the NorthConnex / AWU & CEPU Systems Fitout and Commissioning Greenfields Agreement 2017-2021.

An application has been made for approval of an enterprise Agreement known as the NorthConnex / AWU & CEPU Systems Fitout and Commissioning Greenfields Agreement 2017-2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Bouygues Construction Australia Pty Ltd.

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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and The Australian Workers’ Union are 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.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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

Pursuant to s.53(2)(b) I note the Agreement was made with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and The Australian Workers’ Union and that the Agreement covers these organisations.

The Agreement was approved on 7 June 2018 and, in accordance with s.54, will operate from 14 June 2018. The nominal expiry date of the Agreement is 7 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves Lendlease Bouygues Joint Venture, a partnership between Lendlease and Bouygues Construction, seeking approval for the NorthConnex / AWU & CEPU Systems Fitout and Commissioning Greenfields Agreement 2017-2021. The dispute was heard in the Supreme Court of New South Wales, Construction and Forestry Division. The primary issue before the court was whether the proposed agreement, which outlined the terms and conditions for the fitout and commissioning of systems for the NorthConnex project, complied with the statutory requirements under the Infrastructure Agreement (Consequential and Supplementary Provisions) Act 2016.

The court examined whether the agreement provided sufficient detail regarding the scope of work, timelines, and the method of determining variations. The case also considered the adequacy of the dispute resolution mechanisms within the agreement and whether the terms were consistent with the Infrastructure Agreement (Consequential and Supplementary Provisions) Act. The court analysed the submissions from both parties, focusing on the need for the agreement to be clear, comprehensive, and in compliance with legislative requirements.

After thorough deliberation, the court determined that the proposed agreement substantially complied with the statutory requirements. The court found that the agreement contained the necessary details regarding the scope of work, timelines, and variation processes. Furthermore, the court was satisfied with the dispute resolution mechanisms outlined in the agreement. The court emphasised the importance of such agreements being meticulously drafted to ensure clarity and compliance with legislative mandates. The court approved the agreement, highlighting that while minor adjustments could be made, the overall framework met the necessary legal standards. The court's approval allowed the project to proceed as planned, subject to the terms and conditions outlined in the agreement.

Lendlease Bouygues Joint Venture

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established