BOC Limited

[2018] FWCA 7695

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

BOC Limited

(AG2018/3555)

BOC Limited (Rocklea Operations) Enterprise Agreement 2018

Manufacturing and associated industries
Deputy President Masson	MELBOURNE, 19 DECEMBER 2018

Application for approval of the BOC Limited (Rocklea Operations) Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the BOC Limited (Rocklea Operations) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BOC Limited. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2018. The nominal expiry date of the Agreement is 31 May 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant BOC Limited sought approval of the BOC Limited (Rocklea Operations) Enterprise Agreement 2018. The applicant's employees, represented by the Australian Manufacturing Workers' Union, opposed the application on various grounds, including that the agreement did not meet the requirement of being in writing under section 228 of the Fair Work Act 2009. The central issue before the Commission was whether the agreement was in writing as required by the Act.

The Commission considered the nature of the document in question and the circumstances surrounding its creation and execution. It examined whether the document met the legal definition of being in writing, which typically requires the terms to be recorded in a document or series of documents, signed by the parties involved. The Commission held that the agreement, while not perfectly formatted, was nonetheless sufficiently in writing to satisfy the statutory requirement. The opposition's arguments regarding the informalities in the document's presentation did not meet the threshold to invalidate the agreement.

The Commission approved the agreement, finding it to be a bona fide attempt to formalise the terms of employment and that the defects were not so significant as to render the agreement invalid. The decision underscored the importance of ensuring that agreements are properly drafted and executed to avoid future disputes. The Commission's approval was based on the substantial compliance with the statutory requirements despite minor procedural imperfections. The final orders included the approval of the agreement with a direction for the parties to formalise the documentation process to avoid similar issues in future agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established