BGC Contracting Pty Ltd
[2012] FWA 8917
•18 OCTOBER 2012
[2012] FWA 8917 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
BGC Contracting Pty Ltd
(AG2012/10896)
DEPUTY PRESIDENT MCCARTHY | PERTH, 18 OCTOBER 2012 |
BGC Contracting Maintenance Employees Enterprise Agreement 2012- whether AWU should be heard.
Background
[1] BGC Contracting Pty Ltd (BGC) made an application on 4 September 2012 (the Application) for approval of the BGC Contracting Maintenance Employees Enterprise Agreement 2012 (the Agreement). The Agreement is to apply to employees engaged in maintenance work performed by employees of BGC. The classifications in the Agreement include various levels of mechanical and building tradespersons and also levels of support services persons including those that assist tradespersons. There is no limitation on the area covered by the Agreement.
[2] BGC was described as being in the business of civil and earthworks contracting. The civil and earthworks function is divided into three divisions. There is a mining division, a civil division, which is effectively a construction work and a maintenance division. The maintenance division provides maintenance in support of the work that is done by both the civil division and the mining division 1.
[3] On 20 September 2012 the Australian Workers’ Union (the AWU) sought to be heard regarding the Application. I conducted a conference on 27 September 2012. BGC indicated at that conference that it objected to the AWU being heard. It was agreed at the conference that the AWU was to provide an outline of their submissions and I would list the Application for hearing on 17 October 2012. Both the AWU and BGC lodged outlines of submissions. The AWU also lodged a statement by Mr Martin, an Organiser with the AWU. On 16 October 2012 I was advised by the AWU that BGC had informed them that they wished to cross examine Mr Martin but that Mr Martin was not available until the week beginning 22 October 2012.
[4] I heard submissions regarding the Application to be heard on 17 October 2012, reserved my decision on that issue and adjourned proceedings. This is my decision on the AWU’s application to be heard.
Submissions
[5] BGC have apparently been awarded a contract to operate and maintain the area mines in the South Middleback Ranges in South Australia.
[6] Currently about 160 maintenance employees who are employed by HWE Mining Pty Ltd (HWE) are covered by the HWE South Middleback Ranges Enterprise Agreement 2012
(the HWE Agreement) 2.The HWE Agreement was approved on 22 May 2012 and has a nominal expiry date of 1 May 2014. The AWU submitted that there is an issue as to whether this Agreement or the HWE Agreement will apply to work that is currently covered by the HWE Agreement.
[7] The AWU referred to its Rules and asserted that is has coverage of employees covered by the Agreement. The AWU made no comment about whether there are any members of the AWU employed by BGC as maintenance employees and did not contend that there were or even may be. The AWU also does not assert that is was a bargaining representative for the Agreement.
[8] Essentially the AWU argues that it has an interest in the Application because if the Agreement is approved, a consequence is that it will potentially have wide application beyond those employees that were involved in making it and particularly those covered by the HWE Agreement.
[9] BGC argues that the AWU was not a bargaining representative and has no automatic right to be heard. Further they argue that the AWU does not have the coverage under its Rules to represent employees covered by the Agreement.
[10] BGC submit that it has complied with the requirements of the Fair Work Act 2009 (the FW Act) and their Application should not be delayed.
Consideration
[11] The circumstances here have a number of unique elements. An element includes the view of the AWU that the Agreement is intended to apply to employees who are currently covered by another enterprise agreement recently approved. It appears that the AWU is saying the Agreement may immediately apply to those employees or may apply to those employees in the future depending on whether there is a transfer of business and a transfer of employees.
[12] The AWU did not assert that it has members who were involved in the making of the Agreement nor that it was a bargaining representative.
[13] These circumstances are significantly different from those in Windhoist Australia Pty Ltd v CFMEU (Windhoist Australia Pty Ltd v CFMEU [2012] FWA 630) where I refused to hear the Construction, Forestry, Mining and Energy Union (CFMEU) as there were only eleven employees, one of whom was a member of the CFMEU, and that employee had given written authorisation to another bargaining representative.
[14] Here there is a potential implication that the Agreement if approved will cover work currently undertaken by employees currently employed by another employer and whom the AWU has a history of actively representing. Here also there is an agreement already in place covering employees who made this Agreement. The term of that agreement does not expire until May 2013 3.
[15] In the circumstances present here I consider it is appropriate that the AWU be given the opportunity to be heard and provide evidence and submissions that could help me being properly informed for my consideration of whether the Agreement meets the requirements of the FW Act to be approved.
DEPUTY PRESIDENT
Appearances:
Mr D Fletcher for the Applicant
Ms Z Angus for the Australian Workers’ Union
Hearing details:
2012.
Perth:
October, 17.
1 See Transcript PN96
2 See (2012) FWAA 4425
3 See Transcript PN122
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