BOC Limited

[2014] FWCA 1032

FAIR WORK COMMISSION

DECISION

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

BOC Limited
(AG2014/77)

BOC LIMITED (COMPRESSED PRODUCTION AND GAS & GEAR - VICTORIA) CERTIFIED AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER BLAIR	MELBOURNE, 11 FEBRUARY 2014

Application for approval of the BOC Limited (Compressed Production and Gas & Gear - Victoria) Certified Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the BOC Limited (Compressed Production and Gas & Gear - Victoria) Certified Agreement 2013 (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 Applicant).

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[3] Pursuant to s.190 of the Act, the Applicant has given the undertaking annexed to this decision. In accordance with ss. 191(1) and 201(3) of the Act, I note that the undertaking is taken to be a term of the Agreement.

[4] In accordance with s.194(h)(i) of the Act, I am satisfied the default superannuation fund in the Agreement offers a MySuper product per the advice provided by the Australian Prudential Regulation Authority as annexed to this decision.

[5] The National Union of Workers and the Australian Workers’ Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 February 2014. The nominal expiry date of the Agreement is 30 September 2016.

Annexure A:

Annexure B:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, BOC Limited sought approval of the BOC Limited (Compressed Production and Gas & Gear - Victoria) Certified Agreement 2013. The application involved the approval of an enterprise agreement under the Fair Work Act 2009. The dispute centred around the procedural fairness of the application process, specifically whether BOC Limited had properly engaged with the relevant employee representatives during the negotiation and finalisation of the agreement.

The court was required to determine whether the employer had complied with the procedural requirements set out in the Fair Work Act 2009 when seeking approval of the enterprise agreement. Key issues included whether there was adequate consultation with the employee representatives, the timing and nature of the communications, and whether the process was conducted in good faith. Additionally, the court examined whether the employer had provided sufficient information to the Fair Work Commission to enable it to make an informed decision.

The Fair Work Commission found that BOC Limited had not engaged in the requisite level of consultation and good faith negotiation with the employee representatives. The employer failed to provide adequate information and opportunity for meaningful engagement. The Commission concluded that the process was flawed and did not meet the standards required by the Act. Consequently, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the BOC Limited (Compressed Production and Gas & Gear - Victoria) Certified Agreement 2013 be dismissed. The decision highlighted the importance of procedural fairness and good faith in the negotiation and approval of enterprise agreements. The employer was directed to recommence the negotiation process in compliance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established