Bild Services Pty Ltd

[2022] FWCA 1913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bild Services Pty Ltd

(AG2022/1662)

Civil Infrastructure Melbourne and Regional Division AWU Victorian Maintenance Agreement 2022 - 2025

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 14 JUNE 2022

Application for approval of the Civil Infrastructure Melbourne and Regional Division AWU Victorian Maintenance Agreement 2022 – 2025.

Bild Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Civil Infrastructure Melbourne and Regional Division AWU Victorian Maintenance Agreement 2022 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

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

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, 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 Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 14 June 2022 and, in accordance with s.54, will operate from 21 June 2022. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bild Services Pty Ltd applied to the Fair Work Commission for approval of the Civil Infrastructure Melbourne and Regional Division AWU Victorian Maintenance Agreement 2022 – 2025. The Australian Workers’ Union was the applicant’s bargaining agent and sought to have the agreement approved as a registered agreement. Bild Services Pty Ltd is an employer within the meaning of the Fair Work Act 2009. The applicant is an industrial participant and was represented by the Australian Workers’ Union.

The applicant sought approval of the agreement under section 232 of the Act. The applicant argued that the agreement was a registered agreement. The employer opposed the application on the basis that the agreement did not meet the requirements of a registered agreement as it did not include an individual flexibility clause. The employer submitted that the absence of the clause meant that the agreement did not promote harmonious, productive and cooperative workplace relations. The employer submitted that the absence of the clause meant that the agreement did not promote harmonious, productive and cooperative workplace relations.

The Commission found that the agreement was a registered agreement. The Commission found that the agreement did not need to contain an individual flexibility clause. The Commission found that there was no requirement for an individual flexibility clause to be included in an agreement to be approved as a registered agreement. The Commission noted that the explanatory memorandum to the Fair Work Bill 2008 made it clear that the requirement for individual flexibility clauses was not intended to apply to agreements approved as registered agreements. The Commission found that the agreement met the requirements of a registered agreement and approved the agreement as a registered agreement.

The Commission ordered that the Civil Infrastructure Melbourne and Regional Division AWU Victorian Maintenance Agreement 2022 – 2025 be approved as a registered agreement. The agreement was to be registered under section 165 of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established