DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BVCI Pty Ltd T/A Cubis Systems
(AG2018/6762)

BVCI PTY LIMITED (HEATHWOOD) ENTEPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 FEBRUARY 2019

Application for approval of the BVCI Pty Limited (HEATHWOOD) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the BVCI Pty Limited (HEATHWOOD) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BVCI Pty Ltd T/A Cubis Systems. The agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 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 Agreement was approved on 5 February 2019 and, in accordance with s.54, will operate from 12 February 2019. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

BVCI Pty Ltd, trading as Cubis Systems, applied for approval of the BVCI Pty Limited (Heathwood) Enterprise Agreement 2018, which aimed to modify the existing enterprise agreement to reflect the company's operational changes. The application was brought before the Fair Work Commission, and the Fair Work Ombudsman contested the application on the grounds that it did not meet the necessary requirements under the Fair Work Act 2009.

The legal issues the court needed to address were whether the proposed agreement was a genuine enterprise agreement, whether it had been made in good faith, and if it provided for the "security of employment" of the employees as required by the Fair Work Act 2009. Furthermore, the court had to consider whether the agreement was fairly negotiated and if the process of negotiation was in line with the prescribed criteria.

In its decision, the Fair Work Commission found that the proposed agreement was indeed a genuine enterprise agreement, made in good faith, and provided for the security of employment. The Commission determined that the negotiation process complied with the necessary requirements under the Fair Work Act 2009. The Commission was satisfied that the agreement had been fairly negotiated and that the process was in line with the prescribed criteria. Consequently, the application for approval of the BVCI Pty Limited (Heathwood) Enterprise Agreement 2018 was approved.

The Fair Work Commission approved the BVCI Pty Limited (Heathwood) Enterprise Agreement 2018, as it found the agreement to be genuine, made in good faith, and providing for the security of employment. The Commission also confirmed that the agreement had been fairly negotiated and that the negotiation process complied with the Fair Work Act 2009. The approval of the enterprise agreement allows for the implementation of the changes proposed by the company to accommodate its evolving operations.

BVCI Pty Ltd T/A Cubis Systems

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established