Bess Concrete Pty Ltd Summary

[2022] FWCA 2335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bess Concrete Pty Ltd

(AG2022/2214)

Bess Concrete Enterprise Agreement 2022-2025

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 13 JULY 2022

Application for approval of the Bess Concrete Enterprise Agreement 2022-2025

An application has been made for approval of an enterprise agreement known as the Bess Concrete Enterprise Agreement 2022-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bess Concrete Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 July 2022. The nominal expiry date of the Agreement is 13 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by Bess Concrete Pty Ltd for approval of an enterprise agreement with the Concrete and Masonry Operatives’ Union. The dispute centred around the proposed terms of the Bess Concrete Enterprise Agreement 2022-2025, which the union had negotiated with the company. The primary issues before the Commission were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the ‘better off overall’ test. The Commission had to determine whether the proposed conditions were preferable to the applicable awards and whether they provided a balance of benefits that was fair and reasonable.

The Commission noted that the proposed agreement included provisions on wages, leave, hours of work, and other employment conditions. It considered whether these terms were consistent with the ‘no disadvantage’ test, ensuring that the agreement did not place employees in a position worse off than they would be under the applicable awards. Additionally, the Commission examined if the agreement met the ‘better off overall’ test, requiring that employees be at least as well off under the agreement as they would be under the applicable awards. The Commission also assessed whether the agreement provided for genuine bargaining, was made in good faith, and complied with other statutory requirements.

In its decision, the Commission found that the Bess Concrete Enterprise Agreement 2022-2025 met the statutory requirements under the Fair Work Act. The terms were consistent with the ‘no disadvantage’ test and provided a balance of benefits that satisfied the ‘better off overall’ test. The Commission concluded that the agreement was the product of genuine bargaining and was made in good faith. Accordingly, the Commission approved the agreement, noting that it would provide certainty and stability to both the employer and the employees during the agreement's term.

The Fair Work Commission approved the Bess Concrete Enterprise Agreement 2022-2025, effective from the date of the decision. The approval was contingent upon the agreement being registered with the relevant industrial registry within the specified timeframe. This decision ensured that the terms of the agreement would apply to the employees covered by the agreement, providing a framework for their employment conditions for the next three years.

Bess Concrete Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established