BVAQ Pty Ltd

[2024] FWCA 1635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

BVAQ Pty Ltd

(AG2024/1074)

BVAQ ENTERPRISE AGREEMENT 2024

Scientific services
DEPUTY PRESIDENT BELL	MELBOURNE, 3 MAY 2024

Application for approval of the BVAQ Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the BVAQ Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by BVAQ Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 18 December 2022 and the Agreement was made on 22 March 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]
The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings 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.

I observe that clause 35 and 28(j) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6(c) 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.

The Australian Manufacturing Workers Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it and has advised the Commission that it supports the approval of the Agreement. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 3 May 2024 and, in accordance with s.54, will operate from 10 May 2024. The nominal expiry date of the Agreement is 15 February 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

BVAQ Pty Ltd, an employer, applied to the Fair Work Commission for approval of an enterprise agreement. The dispute involved the terms and conditions of employment for the company's employees, as outlined in the proposed BVAQ Enterprise Agreement 2024. The Fair Work Commission, as the body responsible for overseeing the approval of enterprise agreements, was tasked with determining whether the agreement met the necessary criteria for approval.

The central legal issues the Commission had to resolve were whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly sections relating to the process for making an enterprise agreement and the content of the agreement itself. This included assessing whether the agreement was made in good faith and whether it provided for a fair and efficient system of classifying employees and determining their remuneration and conditions of employment.

The Commission examined the process by which the agreement was made, the terms of the agreement, and whether the agreement met the statutory requirements. The Commission found that the agreement had been made in good faith and that it provided for a fair and efficient system of classifying employees and determining their remuneration and conditions of employment. The Commission concluded that the agreement complied with the relevant provisions of the Fair Work Act and approved the BVAQ Enterprise Agreement 2024. The Commission noted that the agreement provided for appropriate protections for employees, including provisions for minimum rates of pay, leave entitlements, and other conditions of employment. The Commission also noted that the agreement included provisions for dispute resolution and the protection of employees' rights.

The Fair Work Commission approved the BVAQ Enterprise Agreement 2024, finding that it met the necessary criteria for approval under the Fair Work Act. The agreement was approved on the basis that it provided for a fair and efficient system of classifying employees and determining their remuneration and conditions of employment, and that it was made in good faith. The Commission's decision provides clarity for the parties involved and establishes the terms and conditions of employment for the company's employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established