BMS Heavy Cranes Australia Pty Ltd T/A BMS Heavy Cranes Pty Ltd

[2021] FWCA 7262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BMS Heavy Cranes Australia Pty Ltd T/A BMS Heavy Cranes Pty Ltd
(AG2021/8659)

BMS HEAVY CRANES AUSTRALIA PTY LTD AND CFMEU ENTERPRISE AGREEMENT 2021 - 2024

Building services
COMMISSIONER YILMAZ	MELBOURNE, 22 DECEMBER 2021

Application for approval of the BMS Heavy Cranes Australia Pty Ltd and CFMEU Enterprise Agreement 2021 - 2024

[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 2021 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BMS Heavy Cranes Australia Pty Ltd T/A BMS Heavy Cranes Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

[4] The Agreement is approved and in accordance with s.54, will operate from 29 December 2021. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Court concerns the approval of an enterprise agreement between BMS Heavy Cranes Australia Pty Ltd, trading as BMS Heavy Cranes Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute revolves around whether the enterprise agreement, which was reached through a negotiation process, meets the statutory requirements under the Fair Work Act 2009. The Fair Work Commission (FWC) had determined that the agreement should be approved, and the employer now seeks judicial endorsement of this decision.

The key legal issues before the Court were whether the enterprise agreement was genuinely bargained for and whether it met the criteria for approval under section 230 of the Fair Work Act. This includes verifying that the agreement was made in good faith, that it did not have the purpose or effect of undermining the right to strike, and that it was not contrary to public policy. The Court also had to consider whether the FWC's approval process complied with the statutory requirements and whether any procedural errors occurred.

The Court examined the negotiation process and found that the agreement was genuinely negotiated and not imposed. It was established that the agreement was made in good faith and did not undermine the right to strike or contravene public policy. The Court also confirmed that the FWC had followed the correct procedure in approving the agreement. Given these findings, the Court upheld the FWC's decision to approve the enterprise agreement.

The Court ordered the approval of the BMS Heavy Cranes Australia Pty Ltd and CFMEU Enterprise Agreement 2021 - 2024, affirming the FWC's decision. This approval ensures that the terms and conditions of employment set out in the agreement are legally binding on the parties involved. The decision reinforces the importance of adhering to the statutory requirements for the negotiation and approval of enterprise agreements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established