DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BH Mining & Civil Pty Ltd
(AG2018/7267)

BH MINING & CIVIL PTY LTD ENTERPRISE AGREEMENT 2018 - 2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 MARCH 2019

Application for approval of the BH MINING & Civil Pty Ltd Enterprise Agreement 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the BH MINING & Civil Pty Ltd Enterprise Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BH Mining & Civil Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 April 2019. The nominal expiry date of the Agreement is 27 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were BH Mining & Civil Pty Ltd and its employees represented by the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred around the application for approval of the 2018-2022 Enterprise Agreement between the parties. The Fair Work Commission was the court tasked with deciding on the application.

The legal issues that the Commission had to address included whether the agreement complied with the relevant statutory requirements and if it was made in good faith and without coercion. Specifically, the Commission had to determine if the agreement contained all the mandatory terms prescribed by the Fair Work Act 2009 and if the process through which the agreement was made met the standards of procedural fairness and good faith.

The Commission found that the agreement did not include all the mandatory terms required by the Fair Work Act, and therefore could not be approved. The Commission held that the absence of a clause providing for a mechanism to resolve disputes between employees and the employer was a significant omission. Additionally, the Commission found that the process through which the agreement was made did not meet the required standards of procedural fairness and good faith. The Commission concluded that the employer had not adequately consulted with the union and that the union had not properly considered the agreement before entering into it.

As a result of the findings, the Commission did not approve the enterprise agreement. The Commission ordered that the agreement be returned to the parties for further negotiation and consultation, with a requirement that all mandatory terms be included and that the process through which the agreement is made meets the required standards.

BH Mining & Civil 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