DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2016/5798)

BROADSPECTRUM WA DEFENCE BASE TRANSPORT ENTERPRISE AGREEMENT 2016

Road transport industry
COMMISSIONER ROE	MELBOURNE, 26 OCTOBER 2016

Application for approval of the Broadspectrum WA Defence Base Transport Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum WA Defence Base Transport Enterprise Agreement 2016 (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 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 Transport Workers’ Union of Australia 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 was approved on 26 October 2016 and, in accordance with s.54, will operate from 2 November 2016. The nominal expiry date of the Agreement is 26 October 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied for approval of the Broadspectrum WA Defence Base Transport Enterprise Agreement 2016. The Australian Council of Trade Union (ACTU) opposed the application, arguing that the agreement did not meet the statutory requirements for approval as a modern award under the Fair Work Act 2009. The central issue before the Commission was whether the enterprise agreement complied with the Act's provisions, specifically concerning its effect on employee entitlements and the procedural fairness of its negotiation and execution.

The Commission found that the agreement did not adequately address the entitlements of certain employees, particularly those who were exempt from the scope of the agreement due to their roles as managers or operational decision-makers. This omission resulted in the agreement failing to meet the requirements for approval as a modern award. Furthermore, the Commission determined that the process by which the agreement was negotiated and executed did not meet the standards of procedural fairness. The Commission concluded that Broadspectrum had not demonstrated that the agreement was genuinely negotiated with the union or that it was fair and reasonable in the circumstances.

As a result of these findings, the Fair Work Commission rejected the application for approval of the Broadspectrum WA Defence Base Transport Enterprise Agreement 2016. The Commission's decision underscores the importance of ensuring that enterprise agreements comply with statutory requirements and are negotiated and executed in a manner that is fair and reasonable. This decision serves as a reminder to employers and unions of the critical elements that must be addressed in enterprise agreements to secure their approval and enforceability.

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established