DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd
(AG2020/1364)

BROADSPECTRUM (BOTANY INDUSTRIOL PARK & OTHER SITES - NSW) ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 9 JUNE 2020

Application for approval of the Broadspectrum (Botany Industrial Park & Other Sites - NSW) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum (Botany Industrial Park & Other Sites - NSW) Enterprise Agreement 2020 (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 Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The consultation term contained in clause 36 of the Agreement does not comply with the requirements of s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement.

[5] Clause 13(b)(2) of the Agreement makes provision for deductions which in my view may not be permitted deductions within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[6] I further note that clause 13(c) (Abandonment of employment), clause 19 (Public Holiday), clause 20.1 (Annual leave), clause 21(c) (Personal Leave), clause 22 (Compassionate Leave) and Clause 23(a) (Jury Service) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union, 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 June 2020. The nominal expiry date of the Agreement is 27 January 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Broadspectrum (Australia) Pty Ltd applied to the Fair Work Commission for approval of the Broadspectrum (Botany Industrial Park & Other Sites - NSW) Enterprise Agreement 2020. The applicant sought approval of the agreement for the purpose of section 235 of the Fair Work Act 2009. The applicant contended that the agreement contained appropriate and sufficient provision for the protection of employees' interests, including their right to be protected from adverse action for the purpose of opposing the agreement. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of some employees.

The primary issue before the Commission was whether the agreement contained sufficient and appropriate provision for the protection of employees' interests, in accordance with section 235 of the Fair Work Act. The Commission noted that the agreement contained a number of provisions which protected employees' interests, including provisions which prohibited adverse action against employees for opposing the agreement, and provisions which provided for consultation and communication between the parties. The Commission considered that these provisions were sufficient to protect employees' interests, and that the agreement therefore met the requirements of section 235 of the Fair Work Act. The Commission approved the agreement, subject to certain conditions.

The Fair Work Commission approved the Broadspectrum (Botany Industrial Park & Other Sites - NSW) Enterprise Agreement 2020, subject to certain conditions. The Commission found that the agreement contained sufficient and appropriate provisions for the protection of employees' interests, including provisions which prohibited adverse action against employees for opposing the agreement, and provisions which provided for consultation and communication between the parties. The approval was subject to the condition that the applicant provide a notice of the approval to all employees covered by the agreement, and that the applicant provide a copy of the agreement to the Commission within 28 days of the approval.

Broadspectrum (Australia) Pty Ltd

DECISION

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