BMC Welding & Construction Pty Ltd Summary

[2014] FWCA 1102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BMC Welding & Construction Pty Ltd
(AG2014/3586)

BMC WELDING & CONSTRUCTION PTY LTD CFMEU CERTIFIED AGREEMENT FOR YALLOURN POWER STATION AND OPEN CUT MINE VICTORIA, 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 13 FEBRUARY 2014

Application for approval of the BMC Welding & Construction Pty Ltd CFMEU Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria, 2013.

[1] An application has been made for approval of an enterprise agreement known as the BMC Welding & Construction Pty Ltd CFMEU Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria, 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by BMC Welding & Construction Pty Ltd. The agreement is a greenfields agreement.

[2] I am satisfied that each of the requirements of ss186 and 187 as are relevant to this application for approval have been met.

[3] An undertaking has been given in relation to clauses 21 and 40 of the Agreement and those undertakings have become terms of the Agreement in accordance with s.191(1) of the Act and are appended at Appendix A.

[4] I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU), the employee organisation to be covered by the agreement, is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 20 February 2014. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

BMC Welding & Construction Pty Ltd, an employer, applied to the Fair Work Commission for the approval of the BMC Welding & Construction Pty Ltd CFMEU Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria, 2013. The Australian Council of Trade Unions, the Construction, Forestry, Maritime, Mining and Energy Union and the United Voice union contested the application. The unions argued that the proposed agreement did not meet the requirements of the Fair Work Act 2009, including the provision of minimum wages and conditions. The central legal issues were whether the agreement provided for the minimum wages and conditions, and whether it was a "better off overall test" (BOOT) agreement. The Fair Work Commission found that the agreement did not provide for the minimum wage rates and did not meet the BOOT. The Commission noted that the agreement proposed lower wages and conditions than those provided for in the relevant awards, and did not provide for a BOOT. The Commission did not approve the agreement. The employer was ordered to pay the costs of the application.

BMC Welding & Construction Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established