BIC Australia Pty Ltd

[2024] FWCA 3614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

BIC Australia Pty Ltd

(AG2024/3647)

Storage services
COMMISSIONER REDFORD	MELBOURNE, 16 OCTOBER 2024

Application for approval of the BIC Australia Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the BIC Australia Pty Ltd Enterprise Agreement 2024(the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by BIC Australia Pty Ltd (BIC Australia).
I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters set out in ss 193A(2) – (7). 
Noting clause 5.1 of the Agreement (the NES precedence clause), I am satisfied that to the extent the Agreement is less favourable than the National Employment Standards (NES), the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the agreement and the NES. On this basis, I am satisfied that the any apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement including:

(a)Clause 34 of the Agreement, which deals with public holidays, does not expressly provide for an entitlement for employees to be absent from work on a public holiday, within the meaning of s 114(1) of the Act. On the basis of the NES precedence undertaking, the superior entitlement provided for in the NES will apply. 

The United Workers Union (UWU), a bargaining representative for the Agreement, supports the approval of the Agreement and has given notice under s 183 of the Act that it wants to the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the UWU.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 October 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

BIC Australia Pty Ltd has applied for the approval of the BIC Australia Pty Ltd Enterprise Agreement 2024, pursuant to section 185 of the Fair Work Act 2009. The application was heard by Commissioner Redford of the Fair Work Commission in Melbourne on 16 October 2024. The application pertains to the approval of the enterprise agreement for BIC Australia Pty Ltd, which is involved in storage services. The United Workers Union (UWU) supports the approval of the Agreement and has indicated its desire for the Agreement to cover it.

The court had to decide whether the application met all the requirements for approval under sections 186, 187, 188, and 190 of the Act. Additionally, the court needed to determine if the better off overall test, as outlined in sections 193A(2) to (7) of the Act, was satisfied. The court also had to consider the NES precedence clause in clause 5.1 of the Agreement, which ensures that where the Agreement is less favourable than the National Employment Standards (NES), the NES will prevail. The court needed to assess if any inconsistencies with the NES would prevent the approval of the agreement.

The Commissioner was satisfied that all relevant requirements for approval were met, including the better off overall test. The Commissioner noted that any apparent inconsistencies with the NES, such as the lack of an explicit entitlement for employees to be absent from work on a public holiday in clause 34, were addressed by the NES precedence clause. The Agreement was supported by the UWU, and it was noted that the Agreement would cover the UWU. As a result, the Agreement was approved and will operate from 23 October 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established