The Bulwer Maintenance Group Summary

[2014] FWCA 5264

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

The Bulwer Maintenance Group
(AG2014/1823)

BMG (BP REFINERY BULWER ISLAND) - COMMON ENTERPRISE - ENTERPRISE AGREEMENT 2014 - 2016

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 AUGUST 2014

Application for approval of the BMG (BP Refinery Bulwer Island) - Common Enterprise - Enterprise Agreement 2014 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the BMG (BP Refinery Bulwer Island) - Common Enterprise - Enterprise Agreement 2014 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Bulwer Maintenance Group. The Agreement is a single-enterprise agreement.

[2] In my view, the Consultation provision in clause 10 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[3] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[4] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[5] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, The Australian Workers’ Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[7] The Agreement is approved and, in accordance with s.54, will operate from 12 August 2014. The nominal expiry date of the Agreement is 30 June 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Bulwer Maintenance Group (BMG) applied for approval of a new enterprise agreement. The dispute involved the terms of the proposed agreement between the BMG, a group of employers operating on the BP Refinery Bulwer Island site, and their employees, represented by various unions. The Commission was tasked with determining whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the proposed agreement was a "new" enterprise agreement within the meaning of the Act, and if it had been made in good faith and without coercion. Additionally, the Commission had to assess whether the agreement provided for the proper registration of employees, and whether it complied with the "better off overall test" to ensure that employees were not worse off financially or in terms of other conditions of employment compared to their previous arrangements.

The Commission found that the proposed agreement was indeed a new enterprise agreement as it introduced changes to the employment terms of the parties. It determined that the agreement was made in good faith and without coercion, and that it provided for the proper registration of employees. The Commission further held that the agreement satisfied the better off overall test, as it offered employees improved conditions and benefits without diminishing their existing entitlements. Consequently, the Commission approved the BMG (BP Refinery Bulwer Island) - Common Enterprise - Enterprise Agreement 2014 - 2016, recognising it as a valid and legally binding agreement between the BMG and its employees.

The Bulwer Maintenance Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established