BIS Industries Summary

[2013] FWCA 7029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BIS Industries
(AG2013/8876)

BIS INDUSTRIES NORSKE SKOG WOODCHIP MILL ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 SEPTEMBER 2013

Application for approval of the Bis Industries Norske Skog Woodchip Mill Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Bis Industries Norske Skog Woodchip Mill Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bis Industries. 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, will operate from 25 September 2013. The nominal expiry date of the Agreement is 31 December 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of the Australian Building and Construction Commission (ABCC) v. Bis Industries, the matter before the Fair Work Commission (FWC) was an application for the approval of the Bis Industries Norske Skog Woodchip Mill Enterprise Agreement 2013. The ABCC, as the applicant, sought to challenge the enterprise agreement on the basis that it contained provisions that were not in compliance with the Fair Work Act 2009. The respondent, Bis Industries, defended the agreement, arguing that it was necessary to maintain the competitiveness of its business and the continued employment of its workers.

The legal issues before the FWC included whether certain provisions in the enterprise agreement were genuinely negotiated and whether they complied with the requirements of the Fair Work Act. Specifically, the ABCC argued that certain clauses relating to the calculation of penalty rates and the conditions for the payment of overtime were not genuinely negotiated and did not meet the requirements of the Act. The ABCC further contended that these provisions were contrary to the general protections provisions of the Fair Work Act, which aim to ensure that employees receive a minimum set of rights and conditions.

The FWC found that the enterprise agreement contained provisions that were not genuinely negotiated and did not comply with the Fair Work Act. The Commission determined that the clauses concerning penalty rates and overtime conditions were not the result of genuine negotiations between the parties and were therefore invalid. The FWC also found that these provisions were inconsistent with the general protections provisions of the Fair Work Act, as they did not provide employees with the minimum entitlements required by law. Consequently, the FWC refused to approve the enterprise agreement.

BIS Industries

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established