DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Lis-Con Services NSW Pty Ltd
(AG2017/4628)

LIS-CON SERVICES (NSW) PTY LTD / AWU CIVIL CONSTRUCTION GREENFIELDS AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 13 OCTOBER 2017

Application for variation of the Lis-Con Services (NSW) Pty Ltd / AWU Civil Construction Greenfields Agreement 2015.

[1] An application has been made for approval of a variation to the Lis-Con Services (NSW) Pty Ltd / AWU Civil Construction Greenfields Agreement 2015 (the Agreement). The application was made by Lis-Con Services NSW Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 13 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Lis-Con Services NSW Pty Ltd applied to the Fair Work Commission to vary the Lis-Con Services (NSW) Pty Ltd / AWU Civil Construction Greenfields Agreement 2015. The applicant sought a change to the agreement's definition of "casual employee" to include those employees who work less than 38 hours per fortnight. The applicant argued that this change was necessary to ensure the agreement aligned with the Fair Work Act 2009 and the modern casual employment model.

The legal issues before the Commission were whether the proposed variation was consistent with the principles of good faith bargaining and whether the variation would result in a net benefit to the employees. The applicant argued that the change would not adversely affect the employees and would, in fact, provide them with greater flexibility and potentially more work. The respondent union argued that the variation would result in a net detriment to the employees, as it would allow employers to offer casual employment without the same entitlements as permanent employees.

The Commission found that the proposed variation was consistent with the principles of good faith bargaining and that it would not result in a net detriment to the employees. The Commission noted that the variation was aimed at clarifying the definition of "casual employee" to reflect the current legislative framework and would not affect the entitlements of existing employees. The Commission also found that the variation would provide employees with greater flexibility and potentially more work, which was in the interests of both the employees and the employer. The Commission approved the variation, and the agreement was amended accordingly.

The Commission ordered that the Lis-Con Services (NSW) Pty Ltd / AWU Civil Construction Greenfields Agreement 2015 be varied to include the new definition of "casual employee." The variation came into effect on the date of the Commission's decision and applied to all employees who were employed under the agreement at that time. The Commission also ordered that the variation be given effect by the parties in accordance with the agreement and the Fair Work Act 2009.

Lis-Con Services NSW Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established