DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

BMD Constructions Pty Ltd
(AG2017/3637)

BMD CONSTRUCTIONS PTY LTD NEW SOUTH WALES ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 30 AUGUST 2017

Application for variation of the BMD Constructions Pty Ltd New South Wales Enterprise Agreement 2017.

[1] An application has been made for variation of the BMD Constructions Pty Ltd New South Wales Enterprise Agreement 2017 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by BMD Constructions Pty Ltd (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Andy Marcos, Group Executive Director – Administration IR and Human Resources.

[3] The variation can be found at Annexure A of this decision.

[4] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 30 August 2017.

[6] The consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, BMD Constructions Pty Ltd sought a variation of the New South Wales Enterprise Agreement 2017. The applicant argued that changes in the industry and its business operations necessitated amendments to the existing agreement to ensure continued competitiveness and viability. The respondents, including unions representing the employees, opposed the application, contending that the proposed changes would adversely affect the employees' terms and conditions without justifiable cause.

The legal issues before the Commission centred on whether the applicant had demonstrated a genuine change in circumstances warranting the requested variations and whether the proposed changes were fair and reasonable in the context of the existing enterprise agreement. The Commission had to balance the applicant's need for adaptability against the employees' rights and entitlements as established under the Fair Work Act 2009.

After considering the evidence and arguments presented by both parties, the Commission found that the applicant had not adequately demonstrated a genuine change in circumstances that would justify the proposed variations. The changes sought were not deemed necessary to address the challenges faced by the applicant, and the proposed alterations would have significantly impacted the employees' terms and conditions without sufficient benefit to the applicant. Consequently, the application for variation was dismissed. The Commission emphasised the importance of maintaining fair and reasonable terms and conditions for employees, even in the face of business challenges.

BMD Constructions 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