BPW Transpec Pty Ltd

[2023] FWCA 116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BPW Transpec Pty Ltd

(AG2022/5326)

BPW TRANSPEC PTY LTD ENTERPRISE AGREEMENT 2023

Vehicle industry
COMMISSIONER CIRKOVIC	MELBOURNE, 17 JANUARY 2023

Application for approval of the BPW Transpec Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the BPW Transpec Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BPW Transpec Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the provided undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

The Agreement was approved on 17 January 2023 and, in accordance with s.54, will operate from 24 January 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved an application by BPW Transpec Pty Ltd to the Fair Work Commission for the approval of an enterprise agreement. The application arose from negotiations between BPW Transpec Pty Ltd and their employees represented by the Rail, Tram and Bus Industry Union. The dispute centred around the terms and conditions set out in the proposed agreement, including aspects of wages, working conditions, and dispute resolution mechanisms.

The key legal issues before the Commission were whether the proposed agreement met the statutory requirements under the Fair Work Act 2009 and whether it contained provisions that were contrary to the public interest. Specifically, the Commission needed to determine if the agreement adequately provided for minimum entitlements, dispute resolution processes, and whether it could be fairly described as a "better off overall test" (BOOT) agreement.

In its decision, the Fair Work Commission thoroughly examined the provisions of the proposed agreement. The Commission noted that the agreement included provisions that complied with the minimum entitlements required by the Fair Work Act 2009. It found that the dispute resolution mechanisms were fair and accessible. Furthermore, the Commission concluded that the agreement met the better off overall test, as it offered employees benefits that outweighed any disadvantages. Consequently, the Commission approved the BPW Transpec Pty Ltd Enterprise Agreement 2023.

The Fair Work Commission's final orders included the approval of the enterprise agreement, which would now be binding on the parties involved. The agreement was to be registered with the Commission and would come into effect on the date specified within the agreement. This decision concluded the application and established the terms under which BPW Transpec Pty Ltd and its employees would operate going forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established