DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BMD Constructions Pty Ltd
(AG2017/2215)

BMD CONSTRUCTIONS PTY LTD VICTORIA ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 3 JULY 2017

Application for approval of the BMD Constructions Pty Ltd Victoria Enterprise Agreement 2017.

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

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

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Australian Workers’ Union (AWU) 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 July 2017. The nominal expiry date of the Agreement is 30 September 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

BMD Constructions Pty Ltd sought approval of the BMD Constructions Pty Ltd Victoria Enterprise Agreement 2017. The Fair Work Commission was asked to determine whether the agreement met the requirements of section 230 of the Fair Work Act 2009. The application arose from negotiations between the company and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union. The union argued that the agreement did not comply with the statutory criteria, primarily concerning the scope of the agreement and procedural fairness in its negotiation.

The primary legal issue before the Commission was whether the agreement, as presented, was a "direct" agreement between the employer and employees, as required by section 230 of the Fair Work Act. The union contended that the agreement was not direct, as it included provisions that were not the result of direct negotiations between the employer and employees. Additionally, the union raised concerns about procedural fairness in the negotiation process, arguing that the company had failed to provide adequate information to the union. The company, in turn, argued that the agreement was direct and that the union's concerns about procedural fairness were unfounded.

The Fair Work Commission found that the agreement was, in fact, a direct agreement between the employer and employees, despite some procedural shortcomings. The Commission emphasised that the agreement was the product of negotiations between the employer and the union, and that the union had had ample opportunity to engage in discussions and provide feedback. While acknowledging procedural issues, the Commission determined that these did not invalidate the agreement. The union's arguments regarding the scope of the agreement were also dismissed, as the Commission found that the provisions in question were the result of direct negotiations between the parties. Consequently, the Commission approved the agreement, noting the importance of such agreements in facilitating fair and efficient industrial relations.

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