BMD Urban Pty Ltd

[2024] FWCA 4345

[2024] FWCA 4345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BMD Urban Pty Ltd

(AG2024/3662)

BMD - MAJOR ROAD PACKAGE FOR THE 2032 BRISBANE ATHLETES VILLAGE AT NORTHSHORE HAMILTON GREENFIELDS AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT SLEVIN	SYDNEY, 9 DECEMBER 2024

Application for approval of the BMD - Major Road Package for the 2032 Brisbane Athletes Village at Northshore Hamilton Greenfields Agreement 2024

1. An application has been made for the approval of an enterprise agreement known as the BMD - Major Road Package for the 2032 Brisbane Athletes Village at Northshore Hamilton Greenfields Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BMD Urban Pty Ltd (the Applicant).

1. The Agreement is a greenfields agreement for the purposes of s.172(4) of the Act as it was made under s.172(2)(b) with the Australian Workers’ Union (AWU). The AWU is a relevant employee organisation as defined in s.12 of the Act, as it is entitled to represent the industrial interests of one or more of the employees who will be covered by the Agreement.

1. The Commission is required to approve an enterprise agreement if an application is made under s.185 and the requirements set out in ss.186 and 187 are met.

1. Section 186(2)(c) requires that an Agreement not exclude a provision of the National Employment Standard (NES). Clause 6 of the Agreement provides that it be read and interpreted in conjunction with the NES and that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply. I noted that clause 6 may have some work to do because clause 13.6.1 of the Agreement only provides family and domestic violence leave when a family member causes the employee harm. This is inconsistent with s.106B of the Act which allows leave to be taken when a close relative or member of a person’s household in addition to family members causes harm. The effect is a more restrictive application of this leave than entitled under the NES.

1. The Applicant accepted that the NES provision will prevail in accordance with NES precedence term provided in clause 6 of the Agreement in regard to family and domestic violence leave.

1. The Agreement contains a workplace delegates’ rights term at clauses 10.10 and 10.11. I raised that these clauses may be less favourable compared to the delegates’ right term at clause 36A, Workplace Delegates, Consultation, and Dispute Resolution, in the Building and Construction General On-site Award 2020. Section 205A(2) of the Act provides that where a delegates’ rights term is less favourable in an Agreement compared to the Modern Award, the Agreement term will have no effect and the most favourable Modern Award term shall be taken to be a term of the Enterprise Agreement.

1. My concerns went to the failure to expressly provide for representation on disciplinary processes, enterprise bargaining or any other procedure under an Agreement or Award and the provision permitting deductions from pay where a delegate fails to prove that they attended a training course.

1. The Applicant responded that in clause 10.10 the term “discussions” is used in relation to representation of employees in employment matters it is used broadly and contemplates disciplinary process, enterprise bargaining or other procedures in the agreement. In regard to the obligation in the Agreement to prove attendance at training, the applicant acknowledged that in accordance with S.205A(2) of the Act the more favourable Modern Award term would prevail and be taken to be a term of the Agreement.

1. I consider that the Agreement provides for a delegates’ rights clause that is less favourable than term in the Award. In accordance with s.201(1A), I note that clause 36A, Workplace Delegates, Consultation, and Dispute Resolution, in the Building and Construction General On-site Award 2020 is to be taken to be a term of the Agreement.

1. I am satisfied that each of the requirements in ss.186 and 187, as relevant to this application, are met. I am satisfied that in accordance with s.187(5)(a) 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. I am also satisfied that it is in the public interest to approve the Agreement for the purposes of s.187(5)(b).

1. I note the Agreement covers the AWU in accordance with s.53(2)(b) of the Act.

1. The Agreement was approved on 9 December 2024 and, in accordance with s.54 of the Act, will operate from 16 December 2024. The nominal expiry date of the Agreement, in accordance with clause 5 of the Agreement, is 4 years from the date of approval, being 9 December 2028.

DEPUTY PRESIDENT

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