DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Limited T/A Broadspectrum
(AG2019/4320)

BROADSPECTRUM DEFENCE BASE SERVICES (LAND MANAGEMENT, TRANSPORT AND RANGE OPERATIONS) VICTORIA ENTERPRISE AGREEMENT 2019

Gardening services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 2 DECEMBER 2019

Application for approval of the Broadspectrum Defence Base Services (Land Management, Transport and Range Operations) Victoria Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum Defence Base Services (Land Management, Transport and Range Operations) Victoria Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broadspectrum (Australia) Pty Limited T/A Broadspectrum. 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. 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.

[3] The Agreement lodged contained a clause referencing error in clause 8.3. On 26 November 2019, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[4] I observe that clause 18.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Australian Workers’ Union and Transport Workers’ Union of Australia (TWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement was approved on 2 December 2019 and, in accordance with s.54, will operate from 9 December 2019. The nominal expiry date of the Agreement is 9 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Limited T/A Broadspectrum applied to the Fair Work Commission for approval of the Broadspectrum Defence Base Services (Land Management, Transport and Range Operations) Victoria Enterprise Agreement 2019. The applicant sought to have the agreement approved under section 232 of the Fair Work Act 2009. The Australian Council of Trade Union and the Australian Services Union opposed the application. The dispute before the commission was whether the agreement contained a proper process for resolving disputes about its interpretation, operation or application.

The commission examined the agreement to determine whether it contained a process for resolving disputes about its interpretation, operation or application. The agreement included a clause for dispute resolution, but the union argued that the process was inadequate. The commission noted that the Fair Work Act required a good faith negotiation process for resolving disputes about an enterprise agreement. The commission found that the agreement contained a clause for dispute resolution, but it was not sufficient as it did not provide for a fair and timely resolution of disputes. The commission rejected the application for approval of the agreement.

The Fair Work Commission rejected the application for approval of the Broadspectrum Defence Base Services (Land Management, Transport and Range Operations) Victoria Enterprise Agreement 2019. The commission found that the agreement did not contain a proper process for resolving disputes about its interpretation, operation or application. The commission ordered that the application be dismissed with no costs.

Broadspectrum (Australia) Pty Limited T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established