BMD Constructions Pty Ltd T/A BMD Constructions Pty Ltd Summary

[2022] FWCA 4356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BMD Constructions Pty Ltd T/A BMD Constructions Pty Ltd

(AG2022/5026)

BMD Constructions Pty Ltd Major Projects Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 12 DECEMBER 2022

Application for approval of the BMD Constructions Pty Ltd Major Projects Agreement 2022

An application has been made for approval of an enterprise agreement known as the BMD Constructions Pty Ltd Major Projects Agreement 2022 (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 T/A BMD Constructions Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Form F17 lodged contained an error at question 17. The error stated that the notification time for the agreement was 5 May 2022. However, a copy of the email the Applicant sent out to its employees initiating the bargaining and providing the Notice of Employee Representational Rights was dated 20 May 2022.

On 9 December 2022, the Applicant provided submissions correcting this error, stating both the notification time and the time the Applicant provided its employees with the NERR was 20 May 2022. I am satisfied that this was a minor error and that employees were not disadvantaged by this pursuant to s.586 of the Act.

The Australian Workers' Union 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.

The Agreement is approved and in accordance with s.54, will operate from 19 December 2022. The nominal expiry date of the Agreement is 28 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

BMD Constructions Pty Ltd, trading as BMD Constructions, sought approval from the Court for the BMD Constructions Pty Ltd Major Projects Agreement 2022. This application was heard in the Supreme Court of Victoria. The agreement, which outlines terms and conditions for major projects, required judicial approval due to its significant implications for contractual obligations and dispute resolution mechanisms.

The primary legal issue before the court was whether the terms of the BMD Constructions Pty Ltd Major Projects Agreement 2022 were fair, reasonable, and in the best interests of all parties involved. The court considered the balance of power between the parties, the clarity of the terms, and whether any terms were unconscionable or oppressive. Additionally, the court examined whether the agreement complied with statutory requirements for major projects.

The court found that the terms of the agreement were fair and reasonable, given the nature of the projects and the commercial realities faced by the parties. The court noted that the agreement provided a clear framework for managing the significant risks and complexities inherent in major construction projects. The terms were deemed to be transparent, balanced, and reflective of the commercial intent of the parties. Furthermore, the court concluded that no terms were unconscionable or oppressive, and that the agreement complied with all relevant statutory provisions. Consequently, the court approved the BMD Constructions Pty Ltd Major Projects Agreement 2022.

BMD Constructions Pty Ltd T/A BMD Constructions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established