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BGC Contracting Pty Ltd

BGC Contracting Pty Ltd

Case [2018] FWC 1466 12 June 2018

Collective Agreement Approval

Better Off Overall Test (BOOT)

Employee Agreement

Employment & Labour Law

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[2018] FWC 1466

FAIR WORK COMMISSION

DECISION

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

BGC Contracting Pty Ltd
(AG2016/3592)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 JUNE 2018

Application for approval of the Mining Enterprise Agreement 2016; s.180(2) & (5) considered; whether relevant employees genuinely agreed to the Agreement; whether Agreement terms contravened s.55; whether Agreement passed the better off overall test (BOOT); not satisfied Agreement genuinely agreed to by relevant employees; not satisfied terms of the Agreement did not contravene s.55; not satisfied Agreement passes BOOT; Applicant given an opportunity to provide undertakings.

Introduction and background

[1] BGC Contracting Pty Ltd (BGC) applied under s.185 of the Fair Work Act 2009 (Act) for approval of an enterprise agreement titled the Mining Enterprise Agreement 2016 (Agreement). The Agreement was made on 14 June 2016. The application was lodged on 21 June 2016. The Construction, Forestry, Mining and Energy Union, now named the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union (AWU) (collectively “the Unions”) were bargaining representatives for the proposed enterprise agreement concerned. Each gave notice pursuant to s.183 of the Act that it wants the Agreement to cover it, but did not support its approval.

[2] On 28 February 2017, Deputy President Binet issued a decision 1 dismissing BGC’s application for approval of the Agreement (Decision). The Deputy President determined that she was not satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement as required by s.186(2)(a) of the Act. The Deputy President also was not satisfied that the Agreement passed the better off overall test (BOOT) as required by s.186(2)(d) or that its deficiencies could be cured by undertakings.

[3] On 21 March 2017, BGC lodged a Notice of Appeal against the Decision. The Notice of Appeal was amended on 15 and 16 May 2017. On 5 July 2017, a Full Bench of the Commission granted BGC permission to appeal, upheld the appeal, quashed the Decision and remitted the matter to me for rehearing (Appeal Decision). 2

[4] Following the conclusion of the hearing of the matter before me on 16 November 2017, judgments in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd 3(One Key Workforce (No 1)) and Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd4(Thiess) were delivered. I allowed further submissions by BGC and the Unions addressing the effect of the judgments on issues that I am required to determine. The Unions also lodged an application pursuant to s.603 of the Act for revocation of the Appeal Decision consequent on the judgment in Thiess. The application was dismissed by the Full Bench.5 This was unfortunate since on a plain reading of the Appeal Decision, the Full Bench did not deal with the “genuinely agreed” issues determined by the Deputy President, which quite…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BGC Contracting Pty Ltd [2018] FWC 1466
Case: [2018] FWC 1466
Decision Date: 12 JUNE 2018

CaseChat Overview and Summary

BGC Contracting Pty Ltd applied to the Fair Work Commission for approval of the Mining Enterprise Agreement 2016. The dispute involved the determination of whether the agreement genuinely reflected the consensus of the relevant employees, whether it contravened specific provisions of the Fair Work Act, and if it met the better off overall test. The Commission was required to decide if the agreement genuinely represented the employees' agreement, if it complied with section 55 of the Act, and if it satisfied the better off overall test. The court found that the evidence did not convincingly demonstrate that the relevant employees had genuinely agreed to the agreement. Furthermore, the court held that certain terms of the agreement contravened section 55 of the Act. The court also concluded that the agreement did not meet the better off overall test. However, the Commission granted the applicant an opportunity to provide further undertakings to address these concerns.

The Commission's decision hinged on the assessment of the evidence presented regarding the employees' agreement to the terms of the Mining Enterprise Agreement 2016. It was noted that there was insufficient evidence to conclusively establish that the employees had genuinely agreed to the agreement. The court scrutinised the process through which the agreement was reached, considering factors such as the level of employee participation and the adequacy of the consultation process. Regarding the contravention of section 55, the court examined specific terms of the agreement that were found to be inconsistent with the Act's provisions. The court highlighted particular clauses that did not align with the requirements set out in section 55, leading to the determination that these terms were non-compliant. Lastly, the better off overall test was not satisfied as the Commission found that the agreement did not provide adequate improvements to the employees' conditions to justify its approval.

Orders