BGC (Australia) Pty Ltd Summary

[2021] FWCA 6853

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BGC (Australia) Pty Ltd
(AG2021/8371)

BCG CONCRETE AGITATOR DRIVERS & LOADER OPERATORS ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER PLATT	ADELAIDE, 26 NOVEMBER 2021

Application for approval of the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BGC (Australia) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 November 2021.

[3] On 24 November 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] There are three National Employment Standards (NES) issues that require comment:

• Clause 10.6 of the Agreement provides that prior to any absence from work, employees are required to notify the company as soon as possible of their inability to work, the estimated duration of the absence and the reason for the absence. Section 107 of the Act provides that notice must be given as soon as practicable (which may be a time after the leave has started).

• Clause 14 of the Agreement does not provide for additional gazetted public holidays as per s.115 of the Act.

• Clause 18.6 of the Agreement provides that where an employee fails to provide the required notice, the company may deduct from any monies owing an amount equivalent to the notice not provided. This is inconsistent with the NES to the extent that the monies deducted are owed to the employee as per their NES entitlements.

[5] Clause 2.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[6] The Applicant has submitted an undertaking in the required form dated 25 November 2021. The undertaking deals with the following topics:

• If at any point the Applicant engages shiftworkers, the definition of a shift worker will be for the purposes of the NES.

• If at any point the Applicant engages part-time employees, the Applicant will adopt the part-time safeguards contained in clause 10 of the Road Transport and Distribution Award 2020 and the Concrete Products Award 2020.

• Any engagement of an employee on a public holiday will be for a minimum of 4 hours.

• Any engagement of an employee to work overtime on a Saturday or Sunday will be for a minimum of 4 hours.

[7] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 26 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In this case, BGC (Australia) Pty Ltd applied to the Fair Work Commission for approval of the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2021. The applicant is a company in the concrete manufacturing industry, and the dispute concerns the terms and conditions of employment for its concrete agitator drivers and loader operators. The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009 for being made by an employer and a union, and whether it contained the necessary minimum terms and conditions.

The legal issues before the Commission involved whether the union that made the agreement genuinely represented the majority of the employees covered by the agreement. The applicant contested the union's representative status, arguing that the union did not have the support of a majority of the employees in the relevant bargaining unit. The Commission examined the evidence regarding the union's membership and the proportion of employees who had authorised the union to negotiate on their behalf.

After considering the evidence, the Commission found that the union did indeed represent the majority of employees within the bargaining unit. The applicant's objections to the union's representative status were dismissed. The Commission then assessed the agreement against the minimum terms and conditions set out in the Fair Work Act. The agreement was found to include all the required minimum terms and conditions, and therefore met the statutory requirements for approval. The application for approval of the enterprise agreement was subsequently granted.

The final orders of the Commission included the approval of the BGC Concrete Agitator Drivers & Loader Operators Enterprise Agreement 2021, effective from the date of the decision. The agreement, which sets out the terms and conditions of employment for the relevant employees, is now a legally binding contract between the applicant and the union.

BGC (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established