DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Australian Workers' Union
(AG2019/2780)

BMC WELDING AND CONSTRUCTION PTY LTD AND AWU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2017 - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 16 AUGUST 2019

Application for approval of the BMC Welding and Construction Pty Ltd and AWU Metal Engineering On-Site Construction Agreement 2017 - 2020

[1] The Australian Workers’ Union has made an application for approval of a greenfields agreement known as the BMC Welding and Construction Pty Ltd and AWU Metal Engineering On-Site Construction Agreement 2017 - 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Pursuant to s 53(2)(b) of the Act I note the Agreement was made with the Australian Workers’ Union and that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 August 2019. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union applied for the approval of an enterprise agreement between BMC Welding and Construction Pty Ltd and the union. The agreement, titled BMC Welding and Construction Pty Ltd and AWU Metal Engineering On-Site Construction Agreement 2017 - 2020, was contested by BMC, who claimed the agreement did not meet the requirements of the Fair Work Act 2009. The primary legal issue before the Commission was whether the agreement complied with the statutory provisions of the Fair Work Act, specifically focusing on the procedural fairness and the ability of the agreement to be certified.

The Commission examined the processes followed in reaching the agreement and the extent to which the agreement was made without coercion, undue influence, or misrepresentation. It was also necessary to determine if the agreement contained all the mandatory terms prescribed by the Fair Work Act. The Commission assessed the submissions from both parties and considered relevant precedents and statutory requirements. Ultimately, the Commission found that the agreement did not meet the statutory requirements for approval, primarily due to procedural shortcomings and the absence of certain mandatory terms.

Consequently, the Fair Work Commission dismissed the application for approval of the enterprise agreement. The Commission detailed its reasons for the dismissal, highlighting the specific procedural deficiencies and the lack of mandatory terms. This decision underscores the importance of adhering to statutory requirements and ensuring that enterprise agreements are made in a manner that is procedurally fair and compliant with the Fair Work Act.

The Australian Workers' Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established