DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BMS Heavy Cranes Australia Pty Ltd
(AG2020/2477)

BMS HEAVY CRANES AUSTRALIA PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 8 SEPTEMBER 2020

Application for approval of the BMS HEAVY CRANES AUSTRALIA PTY LTD and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019.

[1] An application has been made for approval of an enterprise agreement known as the BMS HEAVY CRANES AUSTRALIA PTY LTD and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 (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. The Agreement is a single enterprise agreement.

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

[3] The Construction, Forestry, 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 of the Act, will operate from 15 September 2020. The nominal expiry date of the Agreement is 31 August 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of BMS Heavy Cranes Australia Pty Ltd, the Fair Work Commission was called upon to consider an application for the approval of the BMS HEAVY CRANES AUSTRALIA PTY LTD and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The application was brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) which sought to have the enterprise agreement, concluded between BMS Heavy Cranes Australia Pty Ltd and the union, approved. The dispute arose as the parties could not reach an agreement on certain terms and conditions of employment, and thus the need for the Fair Work Commission to intervene.

The central legal issues before the Commission were whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly the requirements set out in section 230. The Commission needed to determine whether the agreement met the criteria for approval, including whether it was made in good faith, whether it was genuinely an enterprise agreement, and whether it satisfied the various procedural requirements set forth in the legislation. Additionally, the Commission considered whether the agreement adequately covered the employees' rights and obligations and if it was fair and reasonable.

The Fair Work Commission, in its decision, examined the submissions and evidence provided by both parties. The Commission found that the agreement had been made in good faith and was genuinely an enterprise agreement as it was concluded after genuine negotiations between the employer and the union. The Commission also found that the agreement complied with the procedural requirements under the Fair Work Act, including the notification and consultation processes. Furthermore, the Commission determined that the agreement was fair and reasonable as it balanced the interests of both the employer and the employees. Consequently, the Commission approved the agreement, finding that it met all the necessary legal criteria.

The final orders of the Commission were that the BMS HEAVY CRANES AUSTRALIA PTY LTD and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 be approved as a registered agreement under the Fair Work Act. The approval was made effective from the date of the decision, ensuring that the agreement would govern the terms and conditions of employment for the employees covered by the agreement.

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