BMS Heavy Cranes Australia Pty Ltd Trading AS BMS Heavy Cranes Pty Ltd

[2025] FWCA 2871

[2025] FWCA 2871

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

BMS Heavy Cranes Australia Pty Ltd Trading AS BMS Heavy Cranes Pty Ltd

(AG2025/2755)

BMS HEAVY CRANES AUSTRALIA PTY LTD AND THE CFMEU (CONSTRUCTION AND GENERAL DIVISION) WIND FARMS ENTERPRISE AGREEMENT 2025- 2029

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 1 SEPTEMBER 2025

Application for approval of the BMS Heavy Cranes Australia Pty Ltd and the CFMEU (Construction and General Division) Wind Farms Enterprise Agreement 2025 - 2029

1. An application has been made for approval of an enterprise agreement known as the BMS Heavy Cranes Australia Pty Ltd and the CFMEU (Construction and General Division) Wind Farms Enterprise Agreement 2025 - 2029 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BMS Heavy Cranes Australia Pty Ltd Trading AS BMS Heavy Cranes Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 21 August 2025.

1. On 22 August 2025, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters. The Applicant provided supporting material which resolved the pre-approval concerns identified.

1. There are three National Employment Standard (NES) issues that require comment:

·  Clause 6.1.1 of the Agreement provides for the national weekly hours of 40 hours per week, accruing 4 hours towards an RDO. This may be inconsistent with s.62(1) of the Act which provides that an employer must not request or require an employee to work more than 38 ordinary hours of work in a week unless the additional hours are reasonable.

·  Clause 10.6.5 of the Agreement provides that ‘An employee shall, as soon as reasonably practicable and (other than in extraordinary circumstances) at least two (2) hours prior to the commencement of a rostered shift, inform the Company of the employee’s inability to attend and the estimated duration of the absence’. The clause appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

·  The entitlement to compassionate leave provided by Clause 10.7 of the Agreement does not appear to provide for the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

1. Clause 2.2A of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Construction, Forestry and Maritime Employees 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) of the Act I note that the Agreement covers this organisation.

1. 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.

1. The Agreement is approved and in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2029.

COMMISSIONER

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