The Australian Workers' Union

[2013] FWCA 572

[2013] FWCA 572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

The Australian Workers' Union
(AG2012/12980)

LIS-CON SERVICES PTY LTD PORT BOTANY PROJECT GREENSFIELD AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 24 JANUARY 2013

Application for approval of the Lis-Con Services Pty Ltd Port Botany Project Greenfields Agreement 2012.

[1] An application has been made for approval of a Greenfields Agreement known as the Lis-Con Services Pty Ltd Port Botany Project Greenfields Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act)by the Civil Reo Pty Ltd. The Agreement is a single-enterprise Greenfields Agreement.

[2] The Agreement at clause 5 - Hours of work, provides for an ordinary span of hours from 6:00am to 6:00pm. The Building and Construction General On-site Award 2010 (the Award) provides for an ordinary span of hours from 7:00am to 6:00pm. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has advised that the rates of pay in Appendix 1 of the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours.

Undertakings

[3] An undertaking with respect to clause 24 - Dispute Resolution Procedure,applying to any disputes that arise under the National Employment Standards, has been provided by the Applicant.

[4] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

Flexibility term

[5] The Commission questioned the operation of clause 2 - Workplace Reform, and in particular, subclause c. - Individual Flexibility Arrangements, of the Agreement. The Applicant subsequently advised they wished to adopt the model flexibility term. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

[6] I have considered the matters contained in the employer declaration and the declaration made on behalf of the Australian Workers’ Union (AWU), which I note will be covered by the Agreement.

[7] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the AWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Greenfields Agreement in relation to work that is to be performed under it.

[8] Pursuant to s.187(5)(b), the Act requires that it is in the public interest to approve the Agreement. The Employer has submitted in its employer declaration that the approval of this agreement would be in the public interest, because the Agreement contains rates of pay and conditions which are superior to the Award standard and deliver productivity benefits to the company.

[9] The Greenfields Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 31 January 2013. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Annexure A

Annexure B

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