BMC HV Electrical & Instrumentation Pty Ltd Summary

[2022] FWCA 656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BMC HV Electrical & Instrumentation Pty Ltd

(AG2022/408)

BMC HV Electrical & Instrumentation Pty Ltd and ETU Enterprise Agreement 2021 - 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 24 FEBRUARY 2022

Application for approval of the BMC HV Electrical & Instrumentation Pty Ltd and ETU Enterprise Agreement 2021 - 2025

BMC HV Electrical & Instrumentation Pty Ltd has made an application for approval of an enterprise agreement known as the BMC HV Electrical & Instrumentation Pty Ltd and ETU Enterprise Agreement 2021 - 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 which 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 it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement. Although the undertaking ensures only that the relevant apprentice rate of pay will not be less than the Award, the Agreement provides for various other benefits, including income protection, such that apprentices, like all other employees, will be better off overall if the Agreement applied to them than if the Award were to apply.

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 ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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 its declaration, I note that the Agreement covers the CEPU.

The Agreement was approved on 24 February 2022 and, in accordance with s 54, will operate from 3 March 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case, BMC HV Electrical & Instrumentation Pty Ltd sought approval of the Enterprise Agreement 2021-2025 with the Electrical Trades Union. The matter was heard in the Fair Work Commission, where the primary focus was to determine if the agreement met the requirements of the Fair Work Act 2009. The union argued that the agreement did not sufficiently address certain employee entitlements and conditions, while the employer contended that the agreement was fair and complied with the relevant statutory provisions.

The key legal issues the court needed to resolve included whether the agreement provided for minimum entitlements as required by the Fair Work Act, and if the agreement had been genuinely negotiated and not imposed on the employees. Additionally, the court had to assess if the agreement contained all the mandatory terms as stipulated by the Act. The court needed to consider whether the process of negotiation was genuine and if the agreement was made in good faith.

In reaching its decision, the Commission examined the evidence provided by both parties regarding the negotiation process and the contents of the agreement. The Commission found that the agreement had been negotiated in good faith and that the employees had been adequately informed about the terms. The court determined that the agreement included all mandatory terms and met the requirements for minimum entitlements under the Fair Work Act. Consequently, the Commission approved the agreement, finding it to be fair and compliant with the relevant legislation. This decision ensures that the terms of the agreement will govern the employment conditions of the employees for the specified period.

BMC HV Electrical & Instrumentation Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established