BMD Urban Pty Ltd - [2024] FWCA 3645

[2024] FWCA 3645[Note: An appeal pursuant to s.604 (C2024/7593) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

BMD Urban Pty Ltd

(AG2024/1084)

BMD URBAN PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 18 OCTOBER 2024

Application for approval of the BMD Urban Pty Ltd Enterprise Agreement 2023

On 4 April 2024, an application was made for approval of an enterprise agreement known as the BMD Urban Pty Ltd Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to section 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by BMD Urban Pty Ltd (the Applicant / BMD). The Agreement is a single enterprise agreement.

Procedural history

On 11 April 2024, the Construction, Forestry and Maritime Employees Union (CFMEU) sought documents relating to the proposed agreement and to be heard. Redacted documents were provided the same day.

There are three individual bargaining representatives and one HSR representative who were involved in the bargaining for the Agreement. Each provided a Form F18A providing their views and concerns about the approval of the Agreement. The Applicant also engaged Drayton’s Workplace Consulting Pty Ltd (Drayton’s) to assist it and advise on the bargaining process.

The matter was initially listed for hearing on 3 June 2024.

On 29 May 2024, the Applicant sought an adjournment to allow one of its witnesses, Ms Morgan Moy, a reasonable period of convalescence after having a baby and to allow it to be legally represented. The representative selected was also unavailable on the listed hearing date. On 31 May 2024, the CFMEU opposed the granting of legal representation. Directions were set for the filing of further materials on the issue of representation.

On 19 June 2024, I issued a decision granting the Applicant leave to be legally represented in the matter.[1] On 1 July 2024, the CFMEU appealed this decision. On 26 August 2024, the appeal was dismissed.[2]

The matter was relisted for hearing on 24 and 25 September 2024.

On 18 September 2024, the CFMEU submitted an application for the production of documents of the Applicant. I sought the Applicant’s view before making a determination. Having reviewed both parties’ submissions, and given the Applicant had consented to providing many of the documents sought without the need for the Order to be issued, I directed that the Applicant provide the consented documents and declined to order the production of any contract of service between Drayton’s and the Applicant.

On 20 September 2024, the CFMEU submitted an application for the attendance of Mr Greg Power as a witness for the hearing. I sought the Applicant’s views, and after reviewing the submissions, on 23 September 2024, determined that his evidence would not be sufficiently relevant to compel his attendance.

On 23 September 2024, the CFMEU appealed both interlocutory decisions. In further correspondence later that day,…

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 Urban Pty Ltd [2024] FWCA 3645
Case: [2024] FWCA 3645
Decision Date: 18 OCTOBER 2024

CaseChat Overview and Summary

BMD Urban Pty Ltd sought approval of an enterprise agreement through the Fair Work Commission. The agreement was between the company and its employees and aimed to outline terms and conditions of employment. The dispute involved whether the agreement met the necessary standards and requirements under Australian labour law. The Fair Work Commission was tasked with reviewing and determining the approval of the agreement.

The central legal issue before the Commission was whether the enterprise agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement provided a safety net of minimum entitlements and whether it was made in good faith. Additionally, the Commission needed to ensure that the agreement adhered to the requirements for enterprise agreements, including the provision of adequate consultation and the absence of provisions that could undermine the minimum standards of employment.

In reviewing the enterprise agreement, the Commission found that it provided for a safety net of minimum entitlements and was made in good faith. The agreement included provisions that met the requirements of the Fair Work Act, such as those related to working hours, leave entitlements, and dispute resolution mechanisms. The Commission noted that there was adequate consultation between the parties and that no provisions undermined the minimum standards of employment. Therefore, the Commission concluded that the enterprise agreement complied with the necessary statutory requirements and approved it.

The Fair Work Commission approved the BMD Urban Pty Ltd Enterprise Agreement 2023, finding that it met all necessary legal requirements. The Commission's decision confirmed that the agreement provided a safety net of minimum entitlements, was made in good faith, and complied with the provisions of the Fair Work Act. The approval of the agreement means that it will now form the basis of employment terms and conditions between BMD Urban Pty Ltd and its employees.

Orders