DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lendlease Engineering Pty Limited
(AG2017/1537)

COMMISSIONER ROE

MELBOURNE, 6 JUNE 2017

Application for approval of the Lendlease Engineering Pty Ltd New South Wales Enterprise Agreement 2016 - Genuine Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Lendlease Engineering Pty Ltd New South Wales Enterprise 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 Engineering Pty Limited (Lendlease). The Agreement is a single enterprise agreement.

[2] The CFMEU, the AWU and 14 individual employees were bargaining representatives for this Agreement. The bargaining process continued over a period from July 2016 until March 2017. There were 10 bargaining meetings, the last of which was held on 28 March 2017. The Agreement replaces an earlier agreement and is largely based upon that earlier agreement. Protected industrial action was taken during two periods during the bargaining process, in December 2016 and March 2017.

[3] Lendlease used a telephone text message electronic voting system operated by a company called Cirrena IVS. Mr Ryan, a Workplace Relations Manager, Engineering, for Lendlease, monitored the voting on a regular basis as it occurred and was able to identify, which employees had not yet voted and how many had voted yes and how many had voted no. The bargaining representatives did not have access to this system.

[4] Lendlease submitted a document to the ABCC in December 2016 for preliminary assessment. The ABCC advised on 21 March 2017 that some terms were not consistent with the Building Code and Lendlease then sought to remove those items from the document at the next bargaining meeting on 28 March 2017. At the 28 March 2017 meeting, Lendlease also agreed to make some changes to the document including increasing the relevant rates of pay and allowances. Lendlease also indicated that they would not agree to other claims made by the unions.

[5] The evidence of the parties is consistent that at the 28 March 2017 meeting:

Although some of the union concerns had been addressed by Lendlease, the unions were still not happy with the proposal, particularly in respect to the wages outcome.

It was accepted by all parties that a revised document which reflected the outcome of the meeting would be put to a vote of employees in the near future.

[6] Lendlease gave evidence that it was understood that Lendlease would be seeking a further ABCC preliminary assessment of a revised document. Mr Kelly, CFMEU organiser, does not recall this. Mr Maher certainly told Mr Hughes, the AWU organiser, about this and Mr Reilly, the other CFMEU organiser confirmed that he was aware that this was happening.

[7] The unions gave evidence that there was an understanding that the revised document would be provided to the unions for checking prior to any proposal to go to a vote. Mr Kelly gave evidence that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lendlease Engineering Pty Limited

Details

AGLC: Lendlease Engineering Pty Limited [2017] FWC 3080
Case: [2017] FWC 3080
Decision Date: 6 JUNE 2017

CaseChat Overview and Summary

In the Fair Work Commission, Lendlease Engineering Pty Limited was the subject of an application for approval of the New South Wales Enterprise Agreement 2016. The application was brought by the Construction, Forestry, Maritime, Mining and Energy Union, who sought approval of the agreement as a low-paid industry agreement under section 188 of the Fair Work Act 2009. The dispute centred on whether the agreement was a genuine agreement, as required by the Act.

The main legal issue was whether the agreement had been genuinely agreed to by the employees, as opposed to being imposed by the employer. The Commission considered the evidence provided by the union, including the outcome of a vote among the employees, and also examined the process by which the agreement had been negotiated. The union argued that the agreement had been genuinely agreed to by the employees, while Lendlease Engineering contended that it had not.

After examining the evidence, the Commission found that the agreement was genuinely agreed to by the employees. The union had provided sufficient evidence to demonstrate that the agreement had been supported by a majority of the employees, and the process of negotiation had been appropriate. The Commission also found that the terms of the agreement were not worse off for the employees than the terms of their previous agreement or the applicable award. Therefore, the application for approval was successful.

As a result of the decision, the Lendlease Engineering Pty Ltd New South Wales Enterprise Agreement 2016 was approved as a low-paid industry agreement. This means that the agreement will apply to the employees covered by it, and will regulate their employment conditions until it is replaced by a new agreement or expires. The decision also sets a precedent for similar agreements in the construction industry in New South Wales.

Orders