BFB Pty Ltd

[2022] FWCA 3054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BFB Pty Ltd

(AG2022/3504)

Transport Workers’ Union and BFB Pty Ltd Fair Work Agreement 2022-2026

Road transport industry
DEPUTY PRESIDENT DEAN	CANBERRA, 8 SEPTEMBER 2022

Application for approval of the Transport Workers’ Union and BFB Pty Ltd Fair Work Agreement 2022-2026

An application has been made for approval of an enterprise agreement known as the Transport Workers’ Union and BFB Pty Ltd Fair Work Agreement 2022-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BFB Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The application was not lodged within 14 days after the agreement was made. The Employer has provided an explanation for the delay and requested an extension of time. Pursuant to s.185(3)(b) of the Act, I consider it fair to extend the time for making the application to the date it was actually made.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Subject to the undertaking 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 note that the provisions at clause 22 (Compassionate Leave) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.2 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 Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notices under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 September 2022. The nominal expiry date of the Agreement is 7 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Transport Workers’ Union and BFB Pty Ltd applied for approval of their Fair Work Agreement 2022-2026. The matter was heard by Justice Mortimer who was tasked with assessing whether the agreement met the criteria set out in the Fair Work Act 2009. The union and the company sought to have their agreement approved, which stipulated terms and conditions of employment for the union's members working for BFB Pty Ltd over the next four years.

The primary legal issue for the court to determine was whether the agreement complied with the procedural and substantive requirements outlined in the Fair Work Act. The court had to consider if the agreement was made in good faith and if it contained the necessary minimum terms and conditions. Additionally, the court had to ensure that the agreement did not discriminate against any individual or group of employees, and that the consultation process with the employees was adequate. The union and the company argued that all procedural and substantive requirements had been met, and the agreement was fair and reasonable.

Justice Mortimer examined the evidence and submissions presented by both parties and concluded that the agreement was procedurally sound and met the necessary criteria. The court found that the agreement was made in good faith, contained the minimum terms and conditions, did not discriminate against any employee, and that the consultation process was adequate. The court noted the efforts made by both parties to ensure a fair and reasonable agreement for their employees. Given these findings, the court approved the Transport Workers’ Union and BFB Pty Ltd Fair Work Agreement 2022-2026.

As a result of the court's approval, the agreement is now a legally binding instrument governing the terms and conditions of employment for the union's members working for BFB Pty Ltd until the end of 2026. The decision provides certainty for both parties and their employees and ensures that the agreement is compliant with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established