Kristy Fürchtenicht T/A Bgc (Australia) Pty Ltd

[2023] FWCA 2372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kristy Fürchtenicht T/A Bgc (Australia) Pty Ltd

(AG2023/2363)

BGC PLASTERBOARD ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 31 JULY 2023

Application for approval of the BGC Plasterboard Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the BGC Plasterboard Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kristy Fürchtenicht Trading As BGC (Australia) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 20 April 2023 and the Agreement was made on 7 July 2023. 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 Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 July 2027.

DEPUTY PRESIDENT

[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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were Kristy Fürchtenicht, trading as BGC (Australia) Pty Ltd, and the Australian Building and Construction Commission. The dispute centred around the approval of the BGC Plasterboard Enterprise Agreement 2023. The case was heard in the Fair Work Commission, an Australian industrial relations tribunal.

The key legal issues before the Commission were whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. This included ensuring the agreement complied with the good faith bargaining process, was free from prohibited content, and provided fair terms and conditions for employees. Additionally, the Commission had to determine if the agreement satisfied the requirements for an enterprise agreement, such as covering a particular enterprise and being made by an authorised bargaining representative.

The Commission found that the enterprise agreement was the product of genuine bargaining and was free from prohibited content. The agreement was negotiated in good faith, with both parties participating in the process. The terms and conditions of the agreement were fair and met the statutory requirements. The Commission approved the agreement, noting that it provided for the employees' terms and conditions of employment and was in the best interests of the employees and the employer. The Commission also considered the impact of the agreement on the employees and found that it provided adequate protections and benefits.

The Fair Work Commission approved the BGC Plasterboard Enterprise Agreement 2023, finding it to be a genuine and fair agreement. The Commission was satisfied that the agreement met all the necessary statutory requirements and was in the best interests of the employees and employer. The decision was made in accordance with the principles of good faith bargaining and the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established