B.M.D. Constructions Pty. Limited T/A B.M.D. Constructions Pty. Limited Summary

[2023] FWCA 686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

B.M.D. Constructions Pty. Limited T/A B.M.D. Constructions Pty. Limited

(AG2023/386)

BMD Constructions Pty Ltd ACT Enterprise Agreement 2023

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 2 MARCH 2023

Application for approval of the BMD Constructions Pty Ltd ACT Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the BMD Constructions Pty Ltd ACT Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by B.M.D. Constructions Pty. Limited T/A B.M.D. Constructions Pty. Limited. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 2 March 2023 and, in accordance with s.54, will operate from 9 March 2023. The nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of B.M.D. Constructions Pty. Limited, trading as B.M.D. Constructions Pty. Limited, the Fair Work Commission was tasked with deciding on the approval of the BMD Constructions Pty Ltd ACT Enterprise Agreement 2023. The dispute arose as the applicant, BMD Constructions, sought formal approval of the agreement which outlined terms and conditions of employment for its employees within the Australian Capital Territory. The nature of the dispute centred around whether the agreement met the legal requirements set out by the Fair Work Act 2009.

The legal issues the court had to address involved whether the agreement satisfied the provisions of the Fair Work Act, particularly regarding the terms and conditions of employment, the processes followed in making the agreement, and whether it met the statutory requirements for a lawful enterprise agreement. The court needed to determine if the agreement was made in good faith and if it provided for the proper utilisation of employees, including provisions for minimum rates of pay, leave, and other employment conditions.

The Fair Work Commission, in its decision, examined the processes BMD Constructions followed in negotiating and finalising the agreement. The Commission found that the agreement had been made in good faith, and that it adequately covered the required terms and conditions as stipulated by the Fair Work Act. The court emphasised the importance of ensuring that employees' rights and protections were maintained. Consequently, the Commission approved the BMD Constructions Pty Ltd ACT Enterprise Agreement 2023, confirming that it met all statutory requirements and was in the best interest of the employees involved.

The final orders of the Commission mandated that the approved agreement be registered, effective from the date of the decision. This registration would legally bind the terms of the agreement between BMD Constructions and its employees, ensuring compliance with the Fair Work Act.

B.M.D. Constructions Pty. Limited T/A B.M.D. Constructions Pty. Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established