BAM Clough Contracting Pty Ltd

[2014] FWCA 2142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BAM Clough Contracting Pty Ltd
(AG2014/671)

BAM CLOUGH CONTRACTING PTY LTD AP5 AWU GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 4 APRIL 2014

Application for approval of the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is two and a half years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved BAM Clough Contracting Pty Ltd and the Australian Workers' Union (AWU), with the matter being heard in the Fair Work Commission (FWC). The dispute centred around the application for approval of the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014, a proposed enterprise agreement that aimed to regulate the terms and conditions of employment for workers within the company.

The central legal issues before the FWC included whether the agreement met the requirements for registration under the Fair Work Act 2009, particularly concerning the procedural fairness in the bargaining process and the agreement's compliance with the "better off overall test" which mandates that the agreement should provide employees with at least the same terms and conditions as those they had under their previous arrangements, or better. Additionally, the court examined if the agreement appropriately balanced the interests of both the employer and the employees.

The FWC found that the agreement had been reached through a process that satisfied procedural fairness, as both parties had engaged in genuine bargaining. The commission also determined that the agreement met the better off overall test as it provided employees with improved terms and conditions compared to their previous arrangements. Consequently, the FWC approved the application for the registration of the BAM Clough Contracting Pty Ltd AP5 AWU Greenfields Agreement 2014.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established