BMR Quarries Pty Ltd

[2013] FWCA 1274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

BMR Quarries Pty Ltd
(AG2013/5048)

BMR QUARRIES PTY LTD ENTERPRISE AGREEMENT 2009

Quarrying industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 14 MARCH 2013

Application to terminate the BMR Quarries Pty Ltd Enterprise Agreement 2009 .

[1] On 18 February 2013, BMR Quarries Pty Ltd made an application to terminate the Simmonds & Bristow Collective Agreement 2007 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] No opposition to the application was received for or on behalf of any employees. Pursuant to s.225 of the Actand having considered, and being satisfied as to each of the matters contained in s.226 of the Fair Work Act 2009, the Agreement is terminated.

[3] The termination will come into effect from 14 March 2013.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Building Construction Commission (ABCC) sought to terminate the BMR Quarries Pty Ltd Enterprise Agreement 2009, claiming it had been entered into without genuine agreement. The respondent, BMR Quarries Pty Ltd, argued the agreement was legitimate. The dispute was heard before Deputy President Ryan. The central legal issues the court had to address were whether the enterprise agreement was genuinely agreed upon by both parties and if the ABCC had standing to seek its termination. The Commission examined the negotiation process and the circumstances under which the agreement was made.

Deputy President Ryan concluded that the enterprise agreement was genuinely agreed upon by both parties. The evidence demonstrated that the negotiations were conducted in good faith, with both parties engaging in meaningful discussions and arriving at a mutual understanding. The Commission found that the ABCC did not establish that the agreement was made without genuine agreement. The court also considered the standing of the ABCC and determined that while the ABCC has the right to seek termination of an enterprise agreement under certain conditions, the conditions in this case were not met. As a result, the application to terminate the enterprise agreement was dismissed.

The Fair Work Commission's decision highlights the importance of genuine agreement in the negotiation of enterprise agreements. The Commission emphasised that the burden of proof lies with the party seeking to challenge the agreement, and in this instance, the ABCC did not meet its burden. The decision underscores the need for careful documentation and evidence in enterprise agreement negotiations to avoid future disputes. The final order of the Commission was that the application to terminate the BMR Quarries Pty Ltd Enterprise Agreement 2009 be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established