DECISION

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

BGC Contracting Pty Ltd
(AG2016/3592)

DEPUTY PRESIDENT BINET

PERTH, 28 FEBRUARY 2017

Application for approval of the Mining Enterprise Agreement 2016 - Agreement not approved - Application dismissed.

[1] On 21 June 2016, the Fair Work Commission (FWC) received an application (Application) by BGC Contracting Pty Ltd (BGC) for the approval of the Mining Enterprise Agreement 2016 (Proposed Agreement) pursuant to section 185 of the Fair Work Act 2009 (FW Act).

[2] The Proposed Agreement is a single-enterprise agreement made pursuant to section 185 of the FW Act with a proposed nominal expiry date of 4 years from the date the Agreement is approved by the FWC.

[3] The Proposed Agreement applies to employees of BGC engaged in the classifications set out in sub-clause 7.2 of the Proposed Agreement, who perform work in the mining business unit of BGC Contracting Pty Ltd.

[4] The reference awards for the purposes of the Better Off Overall Test (BOOT) are the Mining Award Industry Award 2010 (Mining Award) and the Black Coal Mining Award Industry Award 2010 (Coal Award).

[5] The Application was accompanied by an Employer’s Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement (F17 Statutory Declaration) by Ms Corrina Tolomei, Senior Manager People at BGC (Ms Tolomei).

[6] According to the Application, the Union Bargaining Representatives who were involved in the agreement making process were:

● Australian Manufacturing Workers’ Union (AMWU);
● Australian Workers’ Union (AWU); and
● Construction, Forestry, Mining and Energy Union (CFMEU),

(Unions) 1.

[7] Annexure B of the Application contained a list of 10 employee bargaining representatives who were also involved in the agreement making process (Employee Bargaining Representatives).

[8] On the following dates, each of the respective Unions lodged a Form F18 Statutory Declaration of Employee Organisation in Relation to an Application for Approval of an Enterprise Agreement (Form F18 Statutory Declarations):

● 29 June 2016 – AMWU;
● 24 August 2016 – CFMEU; and
● 25 August 2016 – AWU.

[9] Each of the respective Unions indicated that it wished to be covered by the Proposed Agreement pursuant to section 183 of the FW Act, but it did not support the approval of the Proposed Agreement by the FWC.

[10] On 19 August 2016, the FWC wrote to BGC outlining several issues it had identified in relation to the Application and directed BGC to respond by close of business, 25 August 2016 (FWC Email).

[11] On 25 August 2016, BGC filed its response to the issues raised by the FWC Email as well as the issues raised by the AMWU and the CFMEU in their respective Form F18 Statutory Declarations. In this response BGC indicated a…

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.

Continue reading BGC Contracting Pty Ltd

Details

AGLC: BGC Contracting Pty Ltd [2017] FWC 852
Case: [2017] FWC 852
Decision Date: 28 FEBRUARY 2017

CaseChat Overview and Summary

The case before the Federal Court involved BGC Contracting Pty Ltd, who sought approval for the Mining Enterprise Agreement 2016. The application was dismissed by the court. The primary dispute centred on whether the agreement was compliant with the Fair Work Act 2009 and its associated regulations. The court was tasked with examining various aspects of the agreement to determine if it met the necessary legal standards.

The key legal issues before the court included whether the agreement adequately represented the interests of the employees, and if it contained the required provisions for minimum entitlements. Additionally, the court assessed whether the agreement was made in good faith and if it provided for the appropriate bargaining processes to be followed. The court needed to scrutinise the evidence presented by both parties to make a determination.

In its reasoning, the court examined the submissions and evidence provided by BGC Contracting and the relevant employee representatives. The court found several deficiencies in the agreement, including insufficient provisions for minimum entitlements and a failure to ensure the agreement was made in good faith. Based on these findings, the court concluded that the agreement did not meet the necessary legal requirements. As a result, the application for approval was dismissed, and the agreement was not approved. The final orders reflected the court's decision to dismiss the application without any approval of the agreement.

Orders