DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lendlease Services Pty Limited T/A Lendlease Services
(AG2018/7268)

LENDLEASE - SERVICES & AMWU - LATROBE VALLEY WORKSHOP - ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 5 FEBRUARY 2019

Application for approval of the Lendlease-Services & AMWU-Latrobe Valley Workshop -Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Lendlease-Services & AMWU-Latrobe Valley Workshop -Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lendlease Services Pty Limited T/A Lendlease Services. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 4.1.1 – Annual leave

• Clause 4.2.1 – Personal/carer’s leave

However, noting clause 2 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement lodged contained an error at Clause 1.8.1. On 5 February 2019, the Applicant filed an amended version of page 6 of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2019. The nominal expiry date of the Agreement is 4 February 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of Lendlease Services Pty Limited T/A Lendlease Services, the Fair Work Commission was tasked with determining whether to approve an enterprise agreement between Lendlease Services and the Australian Manufacturing Workers' Union (AMWU). The agreement, titled the Lendlease-Services & AMWU-Latrobe Valley Workshop Enterprise Agreement 2018, was proposed as a binding and fair agreement between the employer and the union. The parties were required to demonstrate that the agreement met the criteria set out in the Fair Work Act 2009, including that it provided for fair and reasonable terms and conditions of employment, and that it was free from any coercion, undue influence, or other unfair practices.

The primary legal issues the Commission had to resolve were whether the agreement was genuinely negotiated between the parties, whether it provided for fair and reasonable terms and conditions, and whether it complied with the procedural requirements set out in the Fair Work Act. The Commission also had to consider whether the agreement was in the best interests of the employees, and whether it met the "better off overall test" as required by the Act. This test requires that employees be at least as well off under the new agreement as they would be under their previous terms of employment, or that they are better off overall taking into account any additional benefits or improvements provided by the new agreement.

The Commission found that the agreement was genuinely negotiated and met the requirements of the Fair Work Act. The Commission determined that the agreement provided for fair and reasonable terms and conditions, and that it was in the best interests of the employees. The Commission also found that the agreement met the "better off overall test" and that employees would be at least as well off, if not better off, under the new agreement. The Commission approved the Lendlease-Services & AMWU-Latrobe Valley Workshop Enterprise Agreement 2018, noting that it provided for a fair and reasonable agreement that met the requirements of the Fair Work Act.

The final orders of the Commission included the approval of the enterprise agreement, which will now be binding on all employees covered by the agreement. The Commission also directed that the agreement be registered with the Fair Work Commission and that it be published on the Commission's website. The parties were also directed to take all necessary steps to give effect to the agreement and to ensure that it was properly implemented in the workplace.

Lendlease Services Pty Limited T/A Lendlease Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established