DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BGC Contracting Pty Ltd
(AG2017/2092)

BRANCH AND GENERAL ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 17 AUGUST 2017

Application for approval of the Branch and General Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Branch and General Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BGC Contracting Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] 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.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 August 2017. The nominal expiry date of the Agreement is 16 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicants, BGC Contracting Pty Ltd, sought approval of the Branch and General Enterprise Agreement 2017 from the Fair Work Commission. The application was contested by the respondents, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around whether the agreement met the requirements under the Fair Work Act 2009 for approval and registration.

The primary legal issue before the court was whether the enterprise agreement contained terms that unfairly disadvantaged employees, as alleged by the respondents. The court had to determine if the agreement was in compliance with the provisions of the Fair Work Act and whether it met the "better off overall test" (BOOT), ensuring that employees were not worse off overall as a result of the agreement. The court also needed to consider whether the agreement adequately provided for the health, safety and welfare of employees, as well as any other relevant statutory requirements.

The court found that the enterprise agreement did not unfairly disadvantage employees and was in compliance with the Fair Work Act. It concluded that the agreement satisfied the BOOT and that the terms were not detrimental to the employees. The court determined that the agreement appropriately addressed the health, safety, and welfare of employees, and that it met all statutory requirements for approval. Consequently, the court granted the application for approval and registration of the Branch and General Enterprise Agreement 2017.

The Fair Work Commission approved the Branch and General Enterprise Agreement 2017, dismissing the objections raised by the CFMEU. The decision was made on the basis that the agreement was compliant with the Fair Work Act and met the BOOT, as well as addressing the health, safety, and welfare of employees.

BGC Contracting Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established