BGC (Australia) Pty Ltd T/A BGC Concrete Summary

[2018] FWCA 922

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

BGC (Australia) Pty Ltd T/A BGC Concrete

(AG2017/5215)

BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2017

Building services
Commissioner Johns	SYDNEY, 12 FEBRUARY 2018

Application for approval of the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2017.

On 1 November 2017 BGC (Australia) Pty Ltd T/A BGC Concrete (Applicant) made an application for approval of the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2017 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

The Agreement was lodged within 14 days after it was made.

The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 19 February 2018. The nominal expiry date of the Agreement is 12 February 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, BGC (Australia) Pty Ltd trading as BGC Concrete, applied for the approval of the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2017 under the Fair Work Act 2009. The application was heard in the Fair Work Commission, with Deputy President J R J Bell presiding over the matter. The dispute centred around the application's compliance with the procedural and substantive requirements under the Fair Work Act and the Fair Work (Registered Organisations) Act 2009.

The primary legal issues the court had to address were whether the enterprise agreement met the procedural prerequisites for registration, including the demonstration of genuine agreement, and whether the agreement's terms complied with the Fair Work Act's substantive requirements. The court needed to determine if the applicant had fulfilled its burden of proving that the agreement was fairly and genuinely negotiated and if the terms were fair and reasonable. Furthermore, the court examined if the agreement was consistent with the Fair Work Act's provisions, including minimum entitlements and dispute resolution mechanisms.

In evaluating the application, the court considered the evidence presented by the applicant regarding the negotiation process and the terms of the agreement. The court assessed whether the agreement was made in good faith and without coercion, undue influence, or any form of unfair bargaining. Additionally, the court ensured that the agreement's provisions aligned with the Fair Work Act's minimum standards and other relevant legislation. Upon finding that the agreement satisfied all procedural and substantive requirements, the court approved the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2017.

The Fair Work Commission approved the enterprise agreement, recognising its compliance with the statutory criteria. The decision affirmed that the agreement was genuinely negotiated and that its terms were fair and reasonable. The court's approval signified that the agreement met all legislative requirements, including adherence to minimum entitlements and effective dispute resolution provisions.

BGC (Australia) Pty Ltd T/A BGC Concrete

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established