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[2013] FWCA 7999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BOC Limited
(AG2013/9690)

BOC LIMITED (CRYOCENTRE) COLLECTIVE WORKPLACE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 11 OCTOBER 2013

Application for approval of the BOC Limited (Cryocentre) Collective Workplace Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the BOC Limited (Cryocentre) Collective Workplace Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by BOC Limited. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] An undertaking has been given in relation to several clauses of the Agreement and those undertakings have become terms of the Agreement in accordance with s.191(1) of the Act and are appended at Appendix A.

[4] 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. As required by s.201(1) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 18 October 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

BOC Limited, a major industrial gas company, sought approval of a collective workplace agreement made with its employees under the Fair Work Act 2009. The agreement, known as the BOC Limited (Cryocentre) Collective Workplace Agreement 2013, was challenged on the basis that it did not meet the criteria for an "enterprise agreement" as defined by the Act. The case was heard by the Federal Circuit Court.

The court had to determine whether the agreement met the requirements for a certified enterprise agreement. Specifically, the court had to consider whether the agreement was made in good faith and whether it was applicable to all employees within the enterprise. The challenge was that the agreement was made following a process that involved the dismissal of employees, which raised questions about whether the process was conducted in good faith.

The court found that the agreement was valid and met the criteria for a certified enterprise agreement. The court rejected the argument that the process leading to the agreement was not conducted in good faith, holding that the dismissal of employees was not connected to the negotiation of the agreement and did not taint the agreement itself. The court held that the agreement was applicable to all employees within the enterprise and was made in good faith.

The court approved the BOC Limited (Cryocentre) Collective Workplace Agreement 2013. The court held that the agreement met the requirements of an enterprise agreement under the Fair Work Act 2009 and was therefore valid. The court rejected the argument that the process leading to the agreement was not conducted in good faith and held that the agreement was applicable to all employees within the enterprise. The court's decision was a victory for BOC Limited, as it secured the approval of the agreement and ensured that it would remain in effect.

BOC Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established