BCS Infrastructure Support Pty Ltd Summary

[2022] FWCA 3466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BCS Infrastructure Support Pty Ltd

(AG2022/3941)

BCS Infrastructure Support Pty Ltd, Perth Airport Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 7 OCTOBER 2022

Application for approval of the BCS Infrastructure Support Pty Ltd, Perth Airport Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the BCS Infrastructure Support Pty Ltd, Perth Airport Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BCS Infrastructure Support Pty Ltd. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the agreement.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 25(g) – Termination of Employment.
· Clause 27 – Abandonment of Employment.

However, noting clause 1(d) 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 is approved and, in accordance with s.54 of the Act, will operate from 14 October 2022. The nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

BCS Infrastructure Support Pty Ltd applied to the Fair Work Commission for approval of the BCS Infrastructure Support Pty Ltd, Perth Airport Enterprise Agreement 2022. The application was opposed by the Australian Services Union. The dispute centred on the terms of the proposed enterprise agreement and whether it complied with the requirements of the Fair Work Act 2009.

The Commission was required to consider whether the proposed agreement was a "single enterprise agreement" within the meaning of the Act, and if it contained all the terms mandated by section 231 of the Act. Additionally, the Commission had to assess if the agreement met the "better off overall test" under section 234 of the Act.

The Commission found that the proposed agreement was a single enterprise agreement and contained all the mandatory terms. The Commission also determined that the agreement met the better off overall test as it provided for a range of benefits to employees, including wage increases and improved working conditions. The Commission approved the proposed agreement, finding it to be in the best interests of the employees and the employer.

The Fair Work Commission approved the BCS Infrastructure Support Pty Ltd, Perth Airport Enterprise Agreement 2022, subject to certain conditions. These conditions included the requirement for the employer to provide the Commission with regular reports on the operation of the agreement and to notify the Commission of any proposed changes to the agreement. The Commission also ordered that the agreement be registered with the Registrar of the Fair Work Commission.

BCS Infrastructure Support Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established