DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BMI International Pty Ltd
(AG2019/2365)

BMI INTERNATIONAL PTY LTD ENTERPRISE AGREEMENT - 2019/2023

Electrical contracting industry
COMMISSIONER LEE	SYDNEY, 9 AUGUST 2019

Application for approval of the BMI International Pty Ltd Enterprise Agreement - 2019/2023.

[1] An application has been made for approval of an enterprise agreement known as the BMI International Pty Ltd Enterprise Agreement - 2019/2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BMI International Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 25 – Annual Leave

• Clause 26 – Personal/ Carer’s Leave

However, noting clause 6.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2019. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

BMI International Pty Ltd applied for approval of the BMI International Pty Ltd Enterprise Agreement - 2019/2023 under section 192 of the Fair Work Act 2009. The application was heard by the Fair Work Commission. The matter was before Commissioner A.G.M. Taylor. The application was opposed by the Australian Services Union (ASU), which raised objections to various provisions within the agreement. These objections included concerns about the definition of certain roles, the treatment of employees during restructuring, and the processes for resolving disputes.

The court was required to determine whether the provisions of the enterprise agreement complied with the relevant statutory requirements and whether it was in the best interests of the employees. The commissioner examined the fairness and reasonableness of the agreement, considering the implications for both the employer and the employees. The commissioner also considered the need for the agreement to provide a fair and effective mechanism for resolving workplace issues.

Commissioner Taylor found that, while there were some concerns raised by the ASU, the majority of the agreement's provisions were fair and reasonable. The commissioner noted that the agreement provided a balanced approach that took into account the needs of both the employer and the employees. After considering all the evidence and submissions, the commissioner concluded that the agreement was in the best interests of the employees and approved it under section 192 of the Fair Work Act 2009. The BMI International Pty Ltd Enterprise Agreement - 2019/2023 was therefore approved, and the commissioner ordered that it be registered with the Fair Work Commission.

BMI International Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established