BGC (Australia) Pty Ltd T/A BGC Concrete

[2025] FWCA 187

[2025] FWCA 187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

BGC (Australia) Pty Ltd T/A BGC Concrete

(AG2024/5132)

BGC CONCRETE AGITATOR DRIVERS & LOADER OPERATORS ENTERPRISE AGREEMENT 2024

Cement and concrete products
COMMISSIONER LIM	PERTH, 22 JANUARY 2025

Application for approval of the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2024.

1. BGC (Australia) Pty Ltd Trading As BGC Concrete (the Applicant) has made an application for the approval of an enterprise agreement known as the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement. 

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

1. 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. 

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised. 

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met. 

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES): 

(a)Clauses 4.11 and 10.6 require employees to notify the company of their inability to work as soon as possible, and further states that whenever practicable this should occur at least two hours before commencement of the employee’s shift. This appears to be inconsistent with s 107(2) of the Act which states that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

(b)Clause 11 provides for compassionate leave; however, it is silent in relation to the entitlement for when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This appears to be inconsistent with s 104(1)(c) of the Act.

1. However, I am satisfied that under clause 2.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. 

1. The Agreement was approved on 22 January 2025 and, in accordance with s 54, will operate from 29 January 2025. The nominal expiry date of the Agreement is 22 January 2028.

COMMISSIONER

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Annexture A