[2015] FWC 1130

Fair Work Act 2009_

s.505 - Application to deal with a right of entry dispute

Lend Lease Building Pty Ltd T/A Lend Lease; Lend Lease Building Contractors Pty Ltd (formerly Baulderstone Pty Ltd) T/A Lend Lease; Lend Lease Engineering Pty Ltd (formerly Abigroup Contractors Pty Ltd) T/A Lend Lease

Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others

Application to deal with right of entry dispute - settlement of order.

[1] The following decision, now edited, was issued in transcript on 18 February 2015.

[2] Lend Lease has applied under s.505 of the Fair Work Act 2009 (the Act) for orders directed against the Construction, Forestry, Mining and Energy Union (CFMEU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and officials of each union. Section 505 of the Act provides the Fair Work Commission (the Commission) with a power to deal with a dispute in respect of Part 3-4 - Right of entry of the Act, including a power to deal with the dispute in relation to Part 3-4 by arbitration, including by making an order directed to resolving the dispute in relation to Part 3-4.

[3] Lend Lease and the CFMEU have made a concerted attempt, at times with the assistance of Justice Boulton through conciliation to resolve their dispute about Part 3-4 of the Act.

[4] Those efforts have resulted in an agreed resolution of their dispute reflected in a draft order which was provided to me prior to the hearing on 18 February 2015 and which I have had an opportunity to consider.

[5] I commend Lend Lease and the CFMEU for their efforts to resolve the dispute by agreement and for having achieved an agreed resolution of their dispute.

[6] Like all disputes which come to the Commission for resolution, under various parts of the Act, disputes about Part 3-4 are best resolved, if possible, through the agreement of the parties to the dispute. The parties own and are committed to an agreed outcome. Further, the parties' closer knowledge of the dispute and what, within the context of a negotiated settlement, will settle the dispute is more likely to provide a more effective resolution of the dispute.

[7] Two issues arise in relation to the consent order proposed by Lend Lease and the CFMEU, relevant to the power to make the consent order proposed: whether there is a dispute about Part 3-4 of the Act and whether the proposed consent order is directed to the resolution of the dispute.

[8] I have considered the materials filed, in the form of the application as amended, untested statements of proposed witnesses, outlines of submissions and the draft order proposed.

[9] I am satisfied that there is a dispute about the operation of Part 3-4 of the Act, reflected in the amended application of Lend Lease of 6 February 2015 and the disclosure in witness statements of a number of incidences of a dispute by Lend Lease managers and CFMEU officials about the right of entry under Part 3-4 of the Act.

[10] I am also satisfied that the proposed consent order is directed to the resolution of the dispute.

[11] Finally, I am satisfied that the proposed consent order provides an appropriate basis for resolving the dispute between the parties.

[12] I will make the consent order proposed, to operate from today's date and it will operate until 30 June 2016.

[13] I note that the order provides for a joint approach to the Commission to seek its assistance in assessing the utility of the orders to the parties. That approach can be made, referencing RE2014/761, directed to my Chambers and a member of the Commission will be made available for that purpose.

R Dalgleish for the Fair Work Building Industry Inspectorate.

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