DECISION

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

BGC Contracting Pty Ltd T/A BGC
(AG2016/3592)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 NOVEMBER 2018

Application for approval of the Mining Enterprise Agreement 2016; undertaking; whether undertaking meets concerns about the requirements in s.186; application for approval dismissed as undertaking does not meet concern.

[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] The relevant background and proceedings history are set out in my earlier decision dealing with the application for approval of the Agreement 1 and need not be repeated here. The abbreviations used in that decision, will for convenience be used here. In that decision I concluded that I was not satisfied that:

• the Agreement has been genuinely agreed to by the employees covered by the Agreement (s.186(2)(a)); or

• the terms of the Agreement do not contravene s.55 (s.186(2)(c)); or

• the Agreement passes the better off overall test (s.186(2)(d)). 2

[3] I also noted that each of the concerns identified in the decision about each of the above matters was amenable to undertakings. 3 I therefore allowed BGC a period of 14 days (which was subsequently extended) within which to provide any undertakings it wishes and to seek the views of any bargaining representatives.

[4] On 20 September 2018, BGC proposed the following undertakings:

“PROPOSED UNDERTAKING – BGC Contracting Pty Ltd
Operation

This undertaking is given by BGC Contracting Pty Ltd (BGC Contracting) according to section 190 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the Mining Enterprise Agreement 2016 [AG2016/3592] (Agreement).

This undertaking will be taken to be a term of the Agreement pursuant to section 191 of the FW Act.

Defined terms

For the avoidance of doubt, the defined terms used in this undertaking are the same (and have the same meaning) as those used in the Agreement.

Undertaking

1. The rates at clause 7.2 of the Agreement will be applied such that the Weekly Rates and Base Hourly Rates of Pay are 5% above the Mining Award as applicable from time to time, to be maintained throughout the nominal term of the Agreement. The rates from the Commencement Date will be as per the following table.

Level

Classification

Weekly Rate (38 hours)

Base Hourly Rate of…

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 T/A BGC

Details

AGLC: BGC Contracting Pty Ltd T/A BGC [2018] FWC 6936
Case: [2018] FWC 6936
Decision Date: 16 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of BGC Contracting Pty Ltd T/A BGC, the Fair Work Commission was presented with an application for the approval of the Mining Enterprise Agreement 2016. The dispute arose between BGC Contracting and the relevant trade unions, focusing on the terms of the proposed agreement. The Commission's role was to determine whether the agreement complied with the Fair Work Act 2009, particularly in relation to the procedural fairness provisions set out in section 186.

The primary legal issue before the Commission was whether the undertakings provided by the applicant met the concerns raised about the requirements of section 186 of the Act. Section 186 necessitates that the Fair Work Commission consider whether it is appropriate to make an order approving an enterprise agreement when there are procedural fairness concerns. The Commission had to assess whether the undertakings were sufficient to address these concerns and ensure that the agreement was made in accordance with the relevant provisions of the Act.

Upon reviewing the evidence and the arguments presented, the Fair Work Commission determined that the undertakings provided by BGC Contracting were not sufficient to address the concerns about procedural fairness. The Commission found that the process leading to the agreement did not meet the necessary standards of fairness and transparency. Consequently, the application for approval of the Mining Enterprise Agreement 2016 was dismissed as the undertakings did not adequately address the issues raised under section 186 of the Act. The Commission emphasised the importance of procedural fairness in the negotiation and making of enterprise agreements to ensure that the rights of all parties are properly protected.

Orders