DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

BIS Industries Limited T/A BIS
(AG2020/1784)

BIS NEWLANDS ENTERPRISE AGREEMENT 2020

Mining industry
COMMISSIONER HUNT	BRISBANE, 17 JULY 2020

Application for approval of the Bis Newlands Enterprise Agreement 2020.

[1] BIS Industries Limited T/A BIS (the Employer) has applied for approval of an enterprise agreement known as the Bis Newlands Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) and the employee bargaining representatives for the Agreement regarding the undertakings. I did not receive any correspondence from any of the bargaining representatives regarding the undertakings.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The CFMMEU 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) of the Act I note that the Agreement covers the CFMMEU.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 July 2020. The nominal expiry date of the Agreement is three years from the date upon which the Agreement is approved by the Commission

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

BIS Industries Limited, trading as BIS, applied to the Fair Work Commission for approval of the BIS Newlands Enterprise Agreement 2020. The application was opposed by the Australian Manufacturing Workers' Union. The dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009, specifically in relation to minimum entitlements and procedural fairness. The Commission had to determine whether the agreement met the statutory criteria for approval, including ensuring it provided for minimum entitlements as per the National Employment Standards and whether the agreement was genuinely negotiated.

The legal issues revolved around the interpretation and application of the Fair Work Act, particularly sections concerning the approval process for enterprise agreements and the requirement for procedural fairness. The Commission examined whether the agreement provided for terms and conditions that were no less favourable than the applicable minimum standards and whether the process leading to the agreement's creation was fair and genuine. The opposition raised concerns about whether the employees had been adequately informed and consulted during the negotiation process.

The Fair Work Commission found that the BIS Newlands Enterprise Agreement 2020 did not meet the statutory requirements for approval. The Commission concluded that the agreement did not provide for minimum entitlements as required under the Fair Work Act. Additionally, the process leading to the agreement's creation was not considered genuinely negotiated or procedurally fair. The opposition's evidence regarding the lack of adequate consultation and information provided to employees was deemed sufficient to support these findings. Consequently, the application for approval was dismissed.

The Commission ordered that the BIS Newlands Enterprise Agreement 2020 be rejected and not approved. This decision mandated that the existing enterprise agreement, the National Automotive Enterprise Agreement 2020, would continue to apply until a new agreement that met the statutory requirements was successfully negotiated and approved.

BIS Industries Limited T/A BIS

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established