DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreementLendlease Engineering Pty Limited

(AG2019/2295)

LENDLEASE ENGINEERING PTY LTD WESTERN SYDNEY AIRPORT CIVIL WORKS ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 23 AUGUST 2019

Application for approval of the Lendlease Engineering Pty Ltd Western Sydney Airport Civil Works Enterprise Agreement 2019.

[1] An application has been made for the approval of a single-enterprise agreement known as the Lendlease Engineering Pty Ltd Western Sydney Airport Civil Works Enterprise Agreement 2019 (“the Agreement”). The application was made by Lendlease Engineering Pty Limited (“the Applicant”) pursuant to s.185 of the Fair Work Act 2009 (Cth) (“the Act”). The Agreement is a single-enterprise agreement. The relevant modern award is the Building and Construction General On-site Award 2010 (“the Award”).

[2] A previous agreement with substantially identical terms to the Agreement was the Lendlease Engineering Pty Ltd New South Wales Enterprise Agreement 2016 1, being the predecessor of the Agreement, which was approved by Commissioner Roe on 8 June, 2017.

[3] The Agreement was made on 21 June, 2019. The employee organisations who were bargaining representatives for the Agreement were the Australian Workers’ Union (“the AWU”) and the Construction, Forestry, Maritime, Mining and Energy Union (“the CFMMEU”). There were three other employee bargaining representatives.

[4] The Application was contained in the Form F16 completed by the Applicant, together with the Form F17 Statutory Declaration of Ms Natali Salim Nissan, dated 28 June, 2019.

[5] Only the AWU filed a Form F18 Statutory Declaration, from Alistair McLaren Sage, dated 12 July, 2019. That Declaration stated that the AWU did not “oppose approval of the Agreement provided the following matters are addressed. We consider these can be addressed by an undertaking.

1. Clause 26-Redundancy appears to adopt the standard definition of redundancy contained with the National Employment Standards (the NES). That definition is at odds with, and in most respects less beneficial than, the definition in the construction industry specific redundancy scheme provided in the reference instrument, the Building and Construction General On-site Award 2010 (the Award).This has implications for employee entitlements and may affect employee eligibility under, e.g., income protection or other insurance schemes according to which redundancy is a criteria for payment.

2. Clause 27-Abandonment of Employment appears to be inconsistent with Full Bench authority on the notice of termination requirements set by the NES. See Bienias v Ip/ex Pipelines Australia Pty Ltd [2017] FWCFB 38.

3. Clause 22-Annual Leave provides for payment at an employee's base rate of pay, rather than at the full rate of pay as set by cl 38.2(a) of the Award.

4. Clause 2-Flexible Work Arrangements contains fewer safeguards and facilitative provisions than the comparable model clause as contained in the Award (cl 37A).”

[6] The AWU in subsequent correspondence also raised an issue regarding Clause 35.3 of the Agreement regarding Relocation of Employees/Living Away from Home Allowance (“the LAHA”).

[7]

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.

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Details

AGLC: Lendlease Engineering Pty Limited [2019] FWCA 5877
Case: [2019] FWCA 5877
Decision Date: 23 AUGUST 2019

CaseChat Overview and Summary

Lendlease Engineering Pty Limited was before the Fair Work Commission in an application to approve the Western Sydney Airport Civil Works Enterprise Agreement 2019. The applicant, Lendlease Engineering, sought approval for the proposed agreement which was negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement aimed to govern the employment conditions of workers involved in the Western Sydney Airport civil works project.

The primary legal issue before the Commission was whether the agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the minimum entitlements outlined in the Act. The Commission also had to consider whether the agreement was genuinely negotiated and whether it contained provisions that were contrary to public policy.

In its reasoning, the Commission examined the agreement's provisions and the submissions made by both parties. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment, and that it complied with all statutory requirements. The Commission noted that the agreement was the result of genuine negotiations between the parties and that it contained provisions that were not contrary to public policy. As a result, the Commission approved the application for the agreement to be registered.

Consequently, the Fair Work Commission approved the Lendlease Engineering Pty Ltd Western Sydney Airport Civil Works Enterprise Agreement 2019, registering it as a registered agreement under the Fair Work Act 2009. This decision ensures that the terms and conditions set out in the agreement are enforceable and provide a fair framework for the employment of workers on the Western Sydney Airport civil works project.

Orders