BMD Constructions Pty Ltd T/A BMD Constructions Pty Ltd - [2023] FWCA 1158

[2023] FWCA 1158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BMD Constructions Pty Ltd T/A BMD Constructions Pty Ltd

(AG2023/843)

BMD CONSTRUCTIONS PTY LTD NEW SOUTH WALES ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 24 APRIL 2023

Application for approval of the BMD Constructions Pty Ltd New South Wales Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the BMD Constructions Pty Ltd New South Wales Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by BMD Constructions Pty Ltd T/A BMD Constructions Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Procedural history

In correspondence to the Commission dated 30 March 2023, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) advised that it sought to be heard in respect of this application notwithstanding that it was not a bargaining representative involved in the making of the Agreement. The CFMMEU raised a concern that the Agreement has not been genuinely agreed to in accordance with s 186(2)(a) of the Act. Consistent with the Commission’s standard practices, the application material was redacted and provided to the CFMMEU. The views of the parties were sought with respect to the CFMMEU’s request to intervene.

Upon review of the parties’ respective submissions, I exercised powers pursuant to s 590(1) of the Act to allow the CFMMEU to be heard on the application on the basis that it retained a right to appeal any decision approving the Agreement pursuant to s 604 of the Act.[1] Directions were issued for the provision of submissions and evidence from the CFMMEU and the Employer on the CFMMEU’s objection to the application.

In accordance with the directions, the CFMMEU filed submissions on 17 April 2023 and the Employer filed submissions and a witness statement of Ms Lucy Pemble, Human Resources Advisor for the Employer on 20 April 2023.

On 21 April 2023, the Employer and the CFMMEU emailed the Commission requesting the matter be determined on the papers. Accordingly, this decision has been made without convening a hearing. The matters raised by Ms Pemble in her witness statement are therefore unchallenged.

CFMMEU objection

The CFMMEU objected to the approval of the Agreement on the basis that the Employer:[2]

“…failed to explain material from differences between the Current Agreement and Proposed Agreement.
Therefore, we say the proposed agreement has not been genuinely agreed to in accordance with s 186(2) of the FW Act, as the company did not take all reasonable steps to explain the terms of the proposed agreement pursuant to s 180(5) of the FW Act.”[3]

Section 180(5) of the Act deals with the requirement to explain, inter alia, the terms of the Agreement to employees. It provides as follows:

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BMD Constructions Pty Ltd T/A BMD Constructions Pty Ltd [2023] FWCA 1158
Case: [2023] FWCA 1158
Decision Date: 24 APRIL 2023

CaseChat Overview and Summary

The matter involved BMD Constructions Pty Ltd, which applied to the Fair Work Commission for approval of a new enterprise agreement. The application was made under the Fair Work Act 2009, and the dispute centered around the terms and conditions of employment for the workers covered by the agreement. The Fair Work Commission was the body that heard and decided the application.

The primary legal issues that the Fair Work Commission had to address were whether the proposed agreement complied with the statutory requirements set out in the Fair Work Act, including provisions relating to direct and indirect agreements, and whether the agreement was made in good faith and was free from coercion. The Commission also had to consider whether the agreement provided for fair and reasonable terms and conditions of employment.

In examining the application, the Fair Work Commission assessed the provisions of the agreement against the legislative criteria and considered the submissions from both the applicant and any other parties involved. The Commission found that the agreement met all the necessary requirements and was fair and reasonable. The Commission approved the agreement based on its findings that the agreement was compliant with the Act and provided for equitable terms and conditions of employment.

The Fair Work Commission's decision was to approve the BMD Constructions Pty Ltd New South Wales Enterprise Agreement 2023. The approval was granted on the basis that the agreement was compliant with the relevant statutory provisions and provided for fair and reasonable terms and conditions of employment for the workers involved.

Orders