BGC Australia Pty Ltd T/A BGC Transport Summary

[2013] FWCA 5569

FAIR WORK COMMISSION

DECISION

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

BGC Australia Pty Ltd T/A BGC Transport
(AG2013/7933)

BGC TRANSPORT ENTERPRISE AGREEMENT 2013

Road transport industry
COMMISSIONER CARGILL	SYDNEY, 12 AUGUST 2013

Application for approval of the BGC Transport Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the BGC Transport Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by BGC Australia Pty Ltd trading as BGC Transport. The agreement is a single-enterprise agreement.

[2] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement.

[3] The Agreement does contain a consultation term however, it is not a consultation term that fully complies with s205 of the Act. Consequently the model consultation term is taken to be a term of the Agreement.

[4] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54, will operate from 19 August 2013. The nominal expiry date is 2 May 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, BGC Australia Pty Ltd, trading as BGC Transport, sought approval of the BGC Transport Enterprise Agreement 2013. The application was contested by the Transport Workers Union, who argued that certain provisions of the agreement were not in line with national workplace laws and standards. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement provided for fair and reasonable terms and conditions, and whether it complied with the requirements for good faith bargaining and procedural fairness. The Commission had to assess if the agreement's provisions, particularly those concerning pay rates, hours of work, and other employment conditions, were fair and reasonable, and if the bargaining process leading to the agreement was conducted in good faith.

The Commission found that the agreement did not adequately address several critical issues, including the classification of employees and their entitlements. It was noted that the agreement failed to provide clear and comprehensive terms on several points, which were crucial for the employees' understanding and protection of their rights. The Commission also concluded that there were procedural shortcomings in the bargaining process, indicating a lack of good faith on the part of the employer. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission ordered that the BGC Transport Enterprise Agreement 2013 be rejected and not approved. The Commission directed the parties to engage in further negotiations to develop a new agreement that adequately addresses the employees' terms and conditions and complies with the requirements of the Fair Work Act.

BGC Australia Pty Ltd T/A BGC Transport

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established