Lendlease Building Pty Ltd T/A Lendlease Building, Lendlease Building Contractors Pty Ltd

[2021] FWCA 7241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lendlease Building Pty Ltd T/A Lendlease Building, Lendlease Building Contractors Pty Ltd
(AG2021/8680)

LENDLEASE BUILDING AND CFMEU VICTORIA ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 24 DECEMBER 2021

Application for approval of the Lendlease Building and CFMEU Victoria Enterprise Agreement 2020-2023.

[1] Lendlease Building Pty Ltd T/A Lendlease Building and Lendlease Building Contractors Pty Ltd (the Employers) have made an application for approval of an enterprise agreement known as the Lendlease Building and CFMEU Victoria Enterprise Agreement 2020-2023 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employers have provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[4] Pursuant to s. 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Construction, Forestry, Maritime, 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) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

[7] The Agreement was approved on 24 December 2021 and, in accordance with s. 54, will operate from 31 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Lendlease Building Pty Ltd T/A Lendlease Building and Lendlease Building Contractors Pty Ltd, referred to as Lendlease, were applicants before the Fair Work Commission, seeking approval of the Lendlease Building and CFMEU Victoria Enterprise Agreement 2020-2023. The Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union (Victoria Branch) were the respondents. The primary nature of the dispute involved the negotiation and approval of an enterprise agreement that would regulate the employment terms and conditions of employees within the specified period.

The central legal issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement met the criteria for "registration" as opposed to "approval" under the Act, considering the process for resolving disputes and the coverage of the agreement. Additionally, the Commission examined whether the agreement contained all the necessary provisions and whether it was free from prohibited content.

The Commission found that the agreement was compliant with the Act and met the criteria for registration. The agreement was deemed to cover all relevant employees and contained all necessary provisions. It was also determined that the agreement did not include any prohibited content. The process for resolving disputes was considered fair and effective, and the agreement was not likely to have a detrimental effect on the economy. Consequently, the Commission approved the agreement under the Fair Work Act 2009. The approval was effective from the date of the decision, ensuring that the agreement would regulate the employment terms and conditions of employees within the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established