The Australian Workers' Union Summary

[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

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union made an application for approval of the Lis-Con Services Pty Ltd Port Botany Project Greenfields Agreement 2012. The application was before the Fair Work Commission (FWC), which is Australia's national workplace relations tribunal. The dispute involved the approval of an enterprise agreement that was to govern the working conditions of employees of Lis-Con Services Pty Ltd, a company involved in port operations at Port Botany. The FWC had to determine whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issues the FWC considered were whether the agreement contained all the required terms, whether it complied with the provisions of the Fair Work Act, and whether it was made in good faith and without coercion. Specifically, the FWC needed to verify that the agreement addressed all mandatory terms as outlined in the legislation and ensured that employees were not disadvantaged in comparison to their previous conditions. Additionally, the FWC assessed whether the bargaining process adhered to the principles of good faith and freedom from coercion, as mandated by the Fair Work Act.

The FWC found that the agreement contained all the necessary terms and complied with the statutory requirements of the Fair Work Act. The FWC determined that the agreement was made in good faith and without coercion. The FWC concluded that the agreement was fair and appropriate for approval, taking into account the economic context and the specific circumstances of the parties involved. The FWC approved the Lis-Con Services Pty Ltd Port Botany Project Greenfields Agreement 2012, thereby resolving the application.

The FWC issued an order approving the agreement, which was to be registered and become effective upon its approval. The order mandated that the agreement would apply to the employees of Lis-Con Services Pty Ltd and would govern their employment conditions from the date of approval. This decision affirmed the rights and obligations of both the employer and the employees under the terms of the newly approved agreement.

The Australian Workers' Union

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