BMD Constructions Pty Ltd

[2014] FWCA 1676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

BMD Constructions Pty Ltd
(AG2014/409)

BMD CONSTRUCTIONS PTY LTD MELBOURNE PORT CAPACITY PROJECT - ASSOCIATED CIVIL WORKS - ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 MARCH 2014

Application for approval of the BMD Constructions Pty Ltd Melbourne Port Capacity Project - Associated Civil Works - Enterprise Agreement 2014.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 26 February 2014 by BMD Constructions Pty Ltd for the approval of a Greenfields agreement known as the BMD Constructions Pty Ltd Melbourne Port Capacity Project - Associated Civil Works - Enterprise Agreement 2014(“the Agreement”).

[2] A statutory declaration was provided by Mr K. Tapara, Organiser, of the Australian Workers’ Union (“the AWU”); and

[3] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU 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 and that it is in the public interest to approve the Agreement.

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

[5] The consultation clause in the Agreement does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement and is attached to the Agreement.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In BMD Constructions Pty Ltd, the applicant sought approval from the Fair Work Commission for the terms of an enterprise agreement. The agreement, intended to govern the employment conditions of the workforce involved in the Melbourne Port Capacity Project - Associated Civil Works, was contested by the Building and Construction Union, which argued that the terms were not fair and reasonable. The matter was heard by the Fair Work Commission, the tribunal responsible for regulating workplace relations in Australia.

The central legal issue before the Commission was whether the proposed enterprise agreement was fair and reasonable, considering the specific circumstances of the project and the rights and interests of the employees. The Commission had to assess the terms of the agreement against the criteria established by the Fair Work Act 2009, which requires that enterprise agreements must provide for fair and reasonable terms and conditions of employment, and must be consistent with the broader principles of the national workplace relations system.

After a thorough examination of the evidence and submissions from both parties, the Commission concluded that the proposed enterprise agreement did indeed meet the criteria for fairness and reasonableness. The Commission found that the agreement was balanced in its consideration of the interests of both employers and employees, and did not disadvantage employees in a way that would be unjust or unfair. The terms of the agreement were deemed to be consistent with the national workplace relations framework, and thus the application for approval was granted. The Fair Work Commission's decision was based on its interpretation of the evidence presented and the applicable legislative provisions, ensuring that the agreement was fair and reasonable under the circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established