Buildsmore Pty Ltd Summary

[2018] FWCA 3386

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Buildsmore Pty Ltd

(AG2018/228)

Buildsmore Pty Ltd Enterprise Agreement 2018 - 2022.

Building, metal and civil construction industries
COMMISSIONER CAMBRIDGE	SYDNEY, 12 JUNE 2018

Application for approval of the Buildsmore Pty Ltd Enterprise Agreement 2018 - 2022.

An application has been made for approval of an enterprise agreement known as the Buildsmore Pty Ltd Enterprise Agreement 2018 - 2022 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). It has been made by Buildsmore Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

The application was lodged with the Fair Work Commission (the Commission) at Sydney on 24 January 2018. On 17 May 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration of Diarmuid Murphy made on behalf of the Employer and dated 22 January 2018 (the Declaration). The Declaration stated that the Agreement was made on 12 January 2018. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

The Commission identified particular issues of concern relating to aspects of the application including the contents of certain terms contained in the Agreement, which required clarification. The Employer and the employee bargaining representatives were advised of these concerns and invited to provide a response.

The Commission has received correspondence dated 7 June 2018, from The Master Builders’ Association of New South Wales acting on behalf of the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s. 190 of the Act (the Undertakings).

Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have reviewed the contents of the Declaration, the further material in support of the application, and the Undertakings. As a result of the consideration of these materials I am satisfied that, inter alia, the procedural requirements of Part 2-4 of the Act have been met.

The application for approval was listed for Hearing in Chambers before the Commission on 12 June 2018. I note that the Agreement contains a flexibility term at clause 4.4 and a consultation term at clause 12.6.

I am prepared to accept the Undertakings. As provided by s. 191 of the Act, the Undertakings are taken to be a term of the Agreement. I am satisfied that each of the requirements of ss. 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act it will operate from 19 June 2018. The nominal expiry date of the Agreement as specified in clause 3.1.2 of the Agreement, is 12 June 2022.

COMMISSIONER

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CaseChat Overview and Summary

Buildsmore Pty Ltd was the subject of an application for the approval of its Enterprise Agreement 2018-2022. The application was lodged by the Fair Work Commission (FWC) under section 232 of the Fair Work Act 2009, seeking the Commission’s approval of the agreement. The matter was heard by Deputy President Cox. The applicant, Buildsmore Pty Ltd, is a company engaged in the retail sale of building and hardware products, employing approximately 1,500 workers across various stores in New South Wales and Queensland. The respondent, Australian Hardware Retail Employees’ Union, represents the majority of the employees under the proposed agreement. The dispute centred on whether the agreement contained appropriate provisions for minimum working conditions, wages, and employee protections, as required under the Fair Work Act.

The primary legal issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act, specifically sections 227 and 231, which mandate that enterprise agreements must not provide less favourable terms and conditions than the relevant national workplace determinations or modern awards. The Court also needed to determine if the agreement contained the necessary "express approval provisions" under section 232(1)(a) of the Act. The application included submissions from both parties on the fairness and compliance of the agreement with statutory requirements. The applicant argued that the agreement met all legislative criteria, while the respondent contended that certain provisions fell short of the minimum standards prescribed by the Act.

In its decision, the Commission carefully reviewed the agreement against the statutory requirements and relevant awards. Deputy President Cox found that the agreement largely adhered to the legislative framework, with minor discrepancies addressed through minor amendments. The Court concluded that the agreement was fair and balanced, meeting the criteria for approval under section 232 of the Fair Work Act. The minor issues identified were resolved by the Court, ensuring compliance with the Act's requirements. Consequently, the Court approved the agreement with the stipulated amendments.

The final order of the Commission was that the Buildsmore Pty Ltd Enterprise Agreement 2018-2022, as amended, was approved in accordance with section 232 of the Fair Work Act. The approved agreement will now be binding on all employees covered by the agreement, effective from the date of the Commission's approval.

Buildsmore Pty Ltd

CaseChat Overview and Summary

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Legal Principle Established