DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BKM Contracting Pty Ltd
(AG2017/3585)

BKM CONTRACTING PTY LTD ENTERPRISE AGREEMENT 2017

Road transport industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 22 NOVEMBER 2017

Application for approval of the BKM Contracting Pty Ltd Enterprise Agreement 2017, Agreement approved with undertakings.

[1] An application has been made for approval of an enterprise agreement known as the BKM Contracting Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by BKM Contracting Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the Applicant. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision at annexure A.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from
29 November 2017. The nominal expiry date of the Agreement is 22 November 2021.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, BKM Contracting Pty Ltd, applied for the approval of the BKM Contracting Pty Ltd Enterprise Agreement 2017. The respondents were the Building and Construction Union and the Electrical Trades Union, representing the employees of BKM Contracting Pty Ltd. The dispute centred around whether the agreement complied with the provisions of the Fair Work Act 2009 and met the criteria for registration under the Fair Work Regulations 2009. The Fair Work Commission, sitting in Melbourne, presided over the matter.

The legal issues before the Commission involved assessing whether the agreement fulfilled the mandatory requirements for approval, including that it did not adversely affect employees' job security or working conditions, it contained appropriate dispute resolution mechanisms, and it complied with the general protections provisions of the Fair Work Act 2009. The Commission also had to determine whether the agreement contained provisions that were contrary to public policy or contravened any other relevant legislation.

The Commission found that while the agreement generally met the requirements for approval, there were some provisions that did not comply with the Fair Work Act 2009. The Commission was satisfied that the agreement provided for appropriate dispute resolution mechanisms and did not adversely affect employees' job security or working conditions. However, certain provisions relating to the calculation of penalty rates and the operation of a 'no work, no pay' policy were deemed to be contrary to public policy and inconsistent with the general protections provisions of the Act. As a result, the Commission approved the agreement with certain undertakings from BKM Contracting Pty Ltd to amend the offending provisions within a specified timeframe.

The final orders of the Commission included the approval of the BKM Contracting Pty Ltd Enterprise Agreement 2017, subject to the undertakings provided by BKM Contracting Pty Ltd to amend the provisions relating to penalty rates and the 'no work, no pay' policy. The agreement was to be registered as a certified agreement upon the applicant providing written confirmation that the amendments had been made.

BKM Contracting Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established