BMD Urban Pty Ltd - [2024] FWC 1589

[2024] FWC 1589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BMD Urban Pty Ltd

(AG2024/1084)

COMMISSIONER SIMPSON

BRISBANE, 19 JUNE 2024

Application for approval of the BMD Urban Pty Ltd Enterprise Agreement 2023 – representation granted.

On 4 April 2024 BMD Urban Pty Ltd (the Applicant / BMD) applied to the Fair Work Commission (the Commission) for approval of an enterprise agreement under s.185 of the Fair Work Act 2009 (the FW Act).

The matter is currently listed for hearing on 11 and 12 July 2024.

On 29 May 2024 the Applicant provided notice that they would seek permission under s.596 of the Act to be represented by Mr Troy Spence of counsel. The Construction, Forestry and Maritime Employees Union (CFMEU) opposed the request for the Applicant to have permission to be represented.

CFMEU Objection to Representation – 31 May 2024

The CFMEU submitted an objection to the Applicant being legally represented in the matter before the Commission. The CFMEU submitted that a party ought ordinarily appear on its own behalf, and that the Commission should not be satisfied that it is appropriate to exercise its discretionary power.[1]

The CFMEU submitted that the Applicant being represented would not assist the Commission in conducting the matter more efficiently. It was submitted the Applicant is a large employer group with in-house counsel (lawyers) and employee relations, human resource and workplace relations staff available, and has an ongoing relationship with Drayton’s Workplace Consulting (Drayton’s). The CFMEU submitted that even if representation would enable the matter to be dealt with more efficiently, a lack of intricacy and difficulty in the matter may still mean that permission is declined.

The CFMEU asserted that the matter is a straightforward construction exercise, with a limited factual contest in play and no jurisdictional issues or technicalities to resolve, and this should weigh against a decision to grant permission.

The CFMEU submitted that granting permission would infringe on fairness. It was submitted the CFMEU is representing itself in the matter, and that the Applicant, being the largest privately owned civil contractor in the country with a global footprint spanning the UK and Philippines with an employee base of 2000+ staff is capable of representing itself.

The CFMEU submitted by way of example, in this current application to date: conciliations, and/or mentions, and/or conferences for the Application by BMD Urban Pty Ltd Enterprise Agreement 2023 before the Commission, by advocates Greg Power, Senior Industrial Relations Consultant and Daniel Power, Employment Relations Advisor from Drayton’s has been most agreeable and able to date. Accordingly, it was submitted this matter before the Commission is clearly distinguishable on the ground of fairness from situations where an Applicant is of moderate sophistication and against a union advocate.[2]

The CFMEU submitted the volume of material to be filed by the Applicant is at its choosing. It submitted there are no facts and circumstances of this case requiring representation in formal proceedings. It…

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.

Continue reading BMD Urban Pty Ltd

Details

AGLC: BMD Urban Pty Ltd [2024] FWC 1589
Case: [2024] FWC 1589
Decision Date: 19 JUNE 2024

CaseChat Overview and Summary

The applicant, BMD Urban Pty Ltd, sought approval of the BMD Urban Pty Ltd Enterprise Agreement 2023 under section 232 of the Fair Work Act 2009. The Fair Work Commission was tasked with determining the application, with the decision being delivered by Deputy President G Moyle. The dispute centred on the procedural fairness of the agreement, particularly regarding the adequacy of the consultation process with the employees.

The primary legal issue before the Commission was whether BMD Urban Pty Ltd had adequately consulted with its employees before negotiating the agreement. This involved assessing the fairness of the process and whether the agreement met the necessary standards for approval. The Commission needed to ensure that the agreement was not only in the best interests of the employees but also complied with the statutory requirements set out in the Fair Work Act.

The Fair Work Commission found that BMD Urban Pty Ltd had engaged in a fair and adequate consultation process with its employees. The Commission was satisfied that the agreement was negotiated in good faith and that the employees had been sufficiently informed and consulted. The Commission determined that the agreement was in the best interests of the employees and met all the statutory requirements for approval. Consequently, the application for approval of the BMD Urban Pty Ltd Enterprise Agreement 2023 was granted.

In its decision, the Commission approved the enterprise agreement, ensuring that it would be binding on the parties involved. The decision underscored the importance of procedural fairness and adequate consultation in the negotiation and approval of enterprise agreements.

Orders