Lendlease Building Pty Limited; Lendlease Building Contractors Pty Ltd

[2021] FWCA 1073

[2021] FWCA 1073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lendlease Building Pty Limited; Lendlease Building Contractors Pty Ltd
(AG2021/341)

LENDLEASE BUILDING/CFMEU (NEW SOUTH WALES AND AUSTRALIAN CAPITAL TERRITORY) ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 26 FEBRUARY 2021

Application for approval of the Lendlease Building / CFMEU (New South Wales and Australian Capital Territory) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the Lendlease Building / CFMEU (New South Wales and Australian Capital Territory) Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Lendlease Building Pty Limited, and Lendlease Building Contractors Pty Ltd (collectively, the Employers). The Agreement is a single enterprise agreement.

Minor Issues or Technical Errors

[2] The Employer noted two the following two issues at the time of lodging the application:

(a) Two employees did not receive the Notice of Employee Representational Rights (NERR) on 12 and 13 May 2020, being the dates the NERR was issued to the Employers’ workforce. Those two employees received the NERR on 9 June 2020. The reason for the delay was an administrative error, that the Employers say they sought to immediately rectify upon discovering this oversight. Furthermore, on 1 July 2020, the Employers wrote to the Construction, Forestry, Maritime, Mining and Energy Union (Construction and General Division, NSW Branch), who is a bargaining representative, relaying their failure to issue the NERR to the employees. By consent, the Employer and the bargaining representative submit this issue is a “minor procedural error”.

(b) On 28 January 2021, the Employers issued a memorandum to employees regarding, inter alia, the date of the vote to make the Agreement. That date was incorrectly listed as 5 February 2020, not 5 February 2021. One of the employee bargaining representatives informed the Employers of this error. The Employers reissued the memorandum (both verbally and electronically), informing them of the error and the correction.

[3] In my view, the two issues above are minor procedural or technical errors that otherwise do not prevent satisfaction of s.188 of the Act. I say so having regard to the following:

(a) Only two employees did not receive the NERR when it was distributed to the rest of the workforce. This is a very small minority of the overall workforce (being 202 employees at the time the vote was cast). Furthermore, neither of those two employees nominated a bargaining representative following the receipt of the NERR, meaning there was no material disadvantage in this error; and

(b) on 5 February 2021, 186 employees cast a valid vote. This is a very substantial majority of the overall workforce, which again demonstrates there was no material disadvantage that prevented employees from voting on whether to make the Agreement.

Employee organisations to be covered

[4] The Construction, Forestry, Maritime, Mining and Energy Union (C&G, ACT Divisional Branch), and the Construction, Forestry, Maritime, Mining and Energy Union (Construction and General Division, NSW Branch), both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

Agreement approved

[5] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[6] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 March 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

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