DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BMS Heavy Cranes Australia Pty Ltd
(AG2019/1326)

BMS HEAVY CRANES AUSTRALIA PTY LTD AND CFMEU ENTERPRISE AGREEMENT 2019-2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 16 JULY 2019

Application for approval of the BMS Heavy Cranes Australia Pty Ltd and CFMEU Enterprise Agreement 2019-2021. Application for approval of the BMS Heavy Cranes Australia Pty Ltd and CFMEU Enterprise Agreement 2019-2021.

[1] An application has been made for approval of an enterprise agreement known as the BMS Heavy Cranes Australia Pty Ltd and CFMEU Enterprise Agreement 2019-2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BMS Heavy Cranes Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 13 June 2019.

[3] On 20 June 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement, and invited the Applicant to address these matters, including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 28 June 2019. The undertaking deals with the following topics:

• Employees who abandon their employment will be entitled to notice under the National Employment Standards (NES).

• In relation to clause 11.6, and Schedule A of the Agreement, the Applicant will comply with clause 17.4 of the Building and Construction General On-Site Award 2010.

• The reference to “apprentice” in Schedule A of the Agreement shall have no effect.

• Employees who work shift work on an afternoon or night shift roster, which does not continue for at least 5 shifts, will be entitled to a 50% penalty for the first two hours, and 100% thereafter, in addition to the ordinary rate.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

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

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the BMS Heavy Cranes Australia Pty Ltd and CFMEU Enterprise Agreement 2019-2021. The applicant, BMS Heavy Cranes Australia Pty Ltd, sought approval of the enterprise agreement, which was entered into with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard in the Fair Work Commission, an independent statutory tribunal with jurisdiction over industrial relations matters in Australia.

The legal issues the court was required to decide included whether the enterprise agreement was made in accordance with the requirements of the Fair Work Act 2009 and whether it complied with the Fair Work (Registered Organisations) Act 2009. The court also had to determine whether the agreement was in the interests of the employees and the employer, and whether it was made fairly and in good faith. The court was required to consider the submissions made by both parties and any relevant evidence and arguments presented during the hearing.

The court found that the enterprise agreement was made in accordance with the requirements of the Fair Work Act 2009 and complied with the Fair Work (Registered Organisations) Act 2009. The court also found that the agreement was in the interests of both the employees and the employer and was made fairly and in good faith. The court considered the evidence and arguments presented by both parties and determined that the agreement met the necessary criteria for approval. The court approved the enterprise agreement between BMS Heavy Cranes Australia Pty Ltd and CFMEU.

The court ordered that the BMS Heavy Cranes Australia Pty Ltd and CFMEU Enterprise Agreement 2019-2021 be approved and registered with the Fair Work Commission. The court also ordered that the agreement be published on the Fair Work Commission's website and that any disputes arising from the agreement be referred to the Fair Work Commission for resolution. The approval of the enterprise agreement ensures that the terms and conditions of employment for the employees of BMS Heavy Cranes Australia Pty Ltd are governed by the agreement, and any disputes arising from the agreement can be resolved through the Fair Work Commission.

BMS Heavy Cranes Australia 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