Bam & Associates Pty Ltd as Trustee for Bam Trading Trust

[2016] FWCA 1563

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bam & Associates Pty Ltd atf Bam Trading Trust

(AG2016/219)

BAM & ASSOCIATES PTY LTD AS TRUSTEE FOR BAM TRADING

TRUST EMPLOYEE ENTERPRISE AGREEMENT 2015-2018

Building, metal and civil construction industries

COMMISSIONER ROE

MELBOURNE, 11 MARCH 2016

Application for approval of the Bam & Associates Pty Ltd as Trustee for BAM Trading Trust

Employee Enterprise Agreement 2015-2018.

[1] An application has been made for approval of an enterprise agreement known as the

Bam & Associates Pty Ltd as Trustee for BAM Trading Trust Employee Enterprise Agreement

2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work

Act 2009 (the Act). It has been made by Bam & Associates Pty Ltd atf Bam Trading Trust.

The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is

attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the

requirements of ss.186, 187, 188 and 190 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work

Regulations 2009 is taken to be a term of the Agreement.
[2016] FWCA 1563

[5] The Agreement was approved on 11 March 2016 and, in accordance with s.54, will

operate from 18 March 2016. The nominal expiry date of the Agreement is 22 August 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

[2016] FWCA 1563

Annexure A

CaseChat Overview and Summary

Bam & Associates Pty Ltd as Trustee for the BAM Trading Trust applied for the approval of the Bam & Associates Pty Ltd as Trustee for BAM Trading Trust Employee Enterprise Agreement 2015-2018. The application was made under section 185 of the Fair Work Act 2009. The agreement in question is a single enterprise agreement. The applicant provided written undertakings which were reviewed by the Commissioner. The Commissioner was satisfied that the undertakings would not result in financial detriment to the employees or substantial changes to the agreement.

The legal issues that the court needed to consider were whether the agreement met the requirements of sections 186, 187, 188, and 190 of the Fair Work Act 2009. The court also had to determine whether the group of employees covered by the agreement was fairly chosen. Additionally, the court needed to consider whether the agreement included the model flexibility term prescribed by the Fair Work Regulations 2009.

The Commissioner found that the agreement met the requirements of sections 186, 187, 188, and 190 of the Fair Work Act 2009, subject to the undertakings provided by the applicant. The Commissioner was satisfied that the group of employees covered by the agreement was fairly chosen, taking into account the factors in Section 186(3) and (3A) of the Act. The court also found that the agreement included the model flexibility term prescribed by the Fair Work Regulations 2009. The Commissioner approved the agreement on 11 March 2016 and it will operate from 18 March 2016, with a nominal expiry date of 22 August 2018.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established