BI Services Australia Pty Limited Summary

[2023] FWCA 1129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BI Services Australia Pty Limited

(AG2023/387)

BI SERVICES AUSTRALIA B&C ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 20 APRIL 2023

Application for approval of the BI Services Australia B&C Enterprise Agreement 2022.

BI Services Australia Pty Limited (the Employer) has made an application for the approval of the BI Services Australia B&C Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 24.4 – Termination of Employment and Clause 49 – Abandonment of Employment are potentially inconsistent with the National Employment Standards (NES). Noting the NES precedence clause at 2.3, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 April 2023. The nominal expiry date of the Agreement is 20 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

BI Services Australia Pty Limited applied to the Fair Work Commission for approval of the BI Services Australia B&C Enterprise Agreement 2022. The application was opposed by the Professional Services Union of Australia, who raised concerns about the terms of the agreement and their potential impact on employees. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009.

The legal issues the court had to decide included whether the agreement provided for a fair and efficient workplace, and whether it contained terms that were contrary to the public interest. The court also had to consider whether the agreement had been made in good faith and whether it provided for a fair and efficient workplace. The court examined the terms of the agreement and the evidence provided by both parties to determine whether the agreement met the necessary criteria for approval.

The Fair Work Commission found that the agreement met the requirements for approval under the Fair Work Act 2009. The court found that the agreement provided for a fair and efficient workplace, and that the terms of the agreement were not contrary to the public interest. The court also found that the agreement had been made in good faith and provided for a fair and efficient workplace. The court approved the BI Services Australia B&C Enterprise Agreement 2022, subject to certain conditions.

The Fair Work Commission ordered that the agreement be approved, subject to certain conditions, including the provision of a written statement of reasons for the approval and the implementation of certain processes to ensure ongoing compliance with the agreement. The court also ordered that the agreement be published on the Fair Work Commission's website and that a copy of the agreement be provided to the Professional Services Union of Australia. The decision provides guidance on the factors that the court considers when approving an enterprise agreement and the importance of ensuring that the agreement provides for a fair and efficient workplace.

BI Services Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established