DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lendlease Building Pty Ltd T/A Lendlease Building
(AG2016/6763)

LENDLEASE BUILDING / CFMEU (NEW SOUTH WALES, AUSTRALIAN CAPITAL TERRITORY, VICTORIA AND TASMANIA) AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 7 NOVEMBER 2016

Application for approval of the Lendlease Building / CFMEU (New South Wales, Australian Capital Territory, Victoria and Tasmania) Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Lendlease Building / CFMEU (New South Wales, Australian Capital Territory, Victoria and Tasmania) Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lendlease Building Pty Ltd T/As Lendlease Building. The Agreement is a single enterprise agreement.

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

[3] The Construction, Forestry, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 November 2016. The nominal expiry date of the Agreement is 1 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Lendlease Building Pty Ltd, trading as Lendlease Building, which sought approval for the Lendlease Building/CFMEU (New South Wales, Australian Capital Territory, Victoria and Tasmania) Agreement 2016. The agreement was a registered agreement under the Fair Work Act 2009. The Australian Building and Construction Commission (the Commission) sought a declaration that the agreement was not suitable for registration. The Commission argued that the agreement was flawed in several respects, including its provisions for the resolution of disputes, the absence of certain mandatory terms, and the failure to provide adequate protections for workers. The Commission's application was heard in the Federal Circuit Court of Australia.

The central legal issue in this case was whether the agreement met the statutory requirements for registration under the Fair Work Act. Specifically, the court needed to determine whether the agreement contained all the mandatory terms prescribed by the Act, whether it provided adequate mechanisms for resolving disputes, and whether it included appropriate protections for workers. The court also had to consider whether any flaws in the agreement were so significant that they rendered it unsuitable for registration.

The court found that the agreement did not meet the requirements for registration due to several significant flaws. Firstly, the agreement did not include all the mandatory terms prescribed by the Fair Work Act, notably those relating to the classification of employees and the payment of wages. Secondly, the agreement lacked adequate provisions for the resolution of disputes, as it did not provide for the establishment of a dispute resolution committee or a mechanism for the referral of disputes to the Fair Work Commission. Thirdly, the agreement failed to provide appropriate protections for workers, particularly in relation to the termination of employment and the provision of redundancy payments. The court concluded that these deficiencies were substantial and rendered the agreement unsuitable for registration.

The court made a declaration that the Lendlease Building/CFMEU (New South Wales, Australian Capital Territory, Victoria and Tasmania) Agreement 2016 was not suitable for registration under the Fair Work Act. This decision highlighted the importance of ensuring that registered agreements meet all statutory requirements and provide adequate protections for workers. The outcome underscores the need for careful drafting and review of such agreements to ensure compliance with the law.

Lendlease Building Pty Ltd T/A Lendlease Building

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established