DECISION

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

BMD Constructions Pty Ltd
(AG2017/1668)

BMD CONSTRUCTIONS PTY LTD ACT ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 15 JUNE 2017

Application for variation of the BMD Constructions Pty Ltd ACT Enterprise Agreement 2015.

[1] An application has been made for variation of the BMD Constructions Pty Ltd ACT Enterprise Agreement 2015 (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 Resource of the Employer.

[3] The application was filed more than 14 days after the variation was made. However, pursuant to s.210(3)(b) of the Act, I consider that it is fair in all the circumstances to extend the time for filing to 12 May 2017.

[4] The variation can be found at Annexure A to this decision.

[5] 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.

[6] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 15 June 2017.

[7] 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 matter of the Building and Construction Industry (Building and Construction General On-Site Work) Award Modern Award Application, BMD Constructions Pty Ltd sought to vary the BMD Constructions Pty Ltd ACT Enterprise Agreement 2015. The application was brought before the Fair Work Commission by the employer, who sought to amend certain conditions of employment within the agreement. The applicant argued that changes in the industry warranted adjustments to the enterprise agreement, including modifications to pay rates, hours of work, and other conditions of employment.

The primary legal issues the Commission was required to consider were whether the proposed variations were in accordance with the relevant provisions of the Fair Work Act 2009 and whether the changes were fair and reasonable. The Commission had to assess whether the proposed changes were necessary and appropriate to respond to changes in the industry, and whether the changes would have a detrimental impact on the employees covered by the agreement. The Commission also needed to determine if the process for reaching the agreement was compliant with the requirements of the Act.

In delivering its decision, the Commission found that the proposed variations were consistent with the Fair Work Act and were fair and reasonable. The Commission considered that the changes were necessary to respond to changes in the industry and would not have an adverse impact on the employees. The Commission also found that the process for reaching the agreement was compliant with the Act. As a result, the application for variation of the enterprise agreement was approved.

The Fair Work Commission approved the application for variation of the BMD Constructions Pty Ltd ACT Enterprise Agreement 2015, with the changes to take effect from the date of the decision. The new agreement includes modifications to pay rates, hours of work, and other conditions of employment, reflecting changes in the industry. The decision of the Commission is binding on the parties and provides certainty and stability to the employment relationship.

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