Lendlease Services Pty Limited

[2021] FWCA 3438

[2021] FWCA 3438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lendlease Services Pty Limited
(AG2021/5323)

LENDLEASE SERVICES SOUTH AUSTRALIA WATER FIELD SERVICES ENTERPRISE AGREEMENT 2021

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 15 JUNE 2021

Application for approval of the Lendlease Services South Australia Water Field Services Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Lendlease Services South Australia Water Field Services Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Lendlease Services Pty Limited (the Applicant). The agreement is a single enterprise agreement that is a greenfields agreement.

[2] The matter was allocated to my Chambers on 2 June 2021.

[3] On 4 June 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

[5] In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the United Workers’ Union (UWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

[6] The Applicant has submitted an undertaking in the required form dated 15 June 2021. The undertaking deals with the following topics:

•  Where an agreement to cash out annual leave is made under clause 5.1.9 of the Agreement, the relevant employee will be paid the amount which would have been paid had they taken the annual leave foregone.

•  Notwithstanding the last sentence in clause 5.6.10 of the Agreement, an employee who engages in an eligible community services activity will be entitled to be absent from employment as contemplated by s.108 of the Act.

•  Notwithstanding clause 6.7.3 of the Agreement, an alternative date to a public holiday prescribed by the National Employment Standards (NES) may only be agreed between the employer and the relevant employee.

•  The reference to ‘any monies due to the employee’ in clause 2.4.4 shall be read as ‘any wages due to the employee’.

•  The rates of pay prescribed in the Agreement apply at ‘test time’ for the purposes of s.193 of the Act.

•  Notwithstanding clause 4.1.3 of the Agreement, the spread of hours within which ordinary hours for Day Work will be worked shall be between 6.00 am and 6.00 pm.

•  In relation to clause 4.2.3 of the Agreement, Entry Level employees on shiftwork will be paid at a rate of 200% for overtime hours worked in excess of 15 overtime hours per week.

•  The reference in clause 4.6.1(a) to ‘midnight Sunday’ will be read as ‘midnight Saturday’.

•  The agreement referenced in clause 2.1.3(d) will be in writing, and will also include the days upon which the hours will be worked, the classification applying to the work, and the period for which the employee will be part-time. In addition, any variation to this agreement will be recorded in writing, and a copy of the agreement and variation to it will be provided to the employee.

[7] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. It is noted that the CFMMEU objected to the wording of undertaking 5. The issue raised by the CFMMEU does not relate to any of the requirements of which I need to be satisfied to approve the Agreement. I do not have the power to amend the wording of the undertaking without the consent of the Applicant, and the Applicant has not provided their consent.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] The Applicant provided submissions arguing that the correct Award for classification matching for the purposes of the better off overall test (BOOT) is the Building and Construction Onsite General Award 2020 rather than the Water Industry Award 2020. Both the CFMMEU and the UWU objected to the Building and Construction Onsite General Award 2020 being the relevant Award for classification matching.

[10] In my review of the Agreement, comparisons were run against both the Water Industry Award 2020 and the Building and Construction Onsite General Award 2020. As a result of the undertaking received, the Agreement satisfies the BOOT against both Awards. As such, the objections from the CFMMEU and the UWU do not relate to any of the requirement of which I need to be satisfied to approve the Agreement.

[11] Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the UWU and the CFMMEU and that the Agreement covers these organisations.

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

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 23 June 2024.

COMMISSIONER

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