Bona's Concreting Pty Ltd

[2013] FWCA 5202

FAIR WORK COMMISSION

DECISION

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

Bona's Concreting Pty Ltd
(AG2013/2085)

BONA'S CONCRETING PTY LIMITED LNG PROJECTS UNION GREENFIELD AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 30 JULY 2013

Application for approval of the Bona's Concreting Pty Limited LNG Projects Union Greenfield Agreement 2011-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 23 July 2013 by Bona’s Concreting Pty Ltd for the approval of a Greenfields agreement known as the Bona’s Concreting Pty Limited LNG Projects Union Greenfield Agreement 2011-2015(“the Agreement”).

[2] Statutory declarations were provided by:

Mr B. Swan, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”);

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”); and

Mr K. McKenzie, Deputy Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU, AMWU and CEPU are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[4] 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.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Bona's Concreting Pty Ltd, the applicant sought approval for the LNG Projects Union Greenfield Agreement 2011-2015 from the Fair Work Commission. The dispute centred on whether the proposed agreement met the necessary standards under the Fair Work Act 2009 for approval and registration. The Fair Work Commission was the tribunal tasked with reviewing the application and making a decision.

The primary legal issues revolved around whether the agreement was genuinely negotiated, if it contained the mandated minimum terms and conditions, and if it complied with the procedural requirements stipulated by the Act. The applicant needed to demonstrate that the agreement was the result of genuine bargaining between the employer and the union, and that it provided employees with protections at least equal to those provided under the relevant award or registered agreement.

The Commission found that the applicant had not provided sufficient evidence to satisfy the requirements for approval. The applicant had failed to demonstrate that the agreement had been genuinely negotiated and did not include the mandated minimum terms and conditions. The Commission further found that the procedural requirements of the Act were not met, as the applicant did not provide a copy of the agreement to each employee and did not give employees an opportunity to seek independent legal advice.

As a result, the Fair Work Commission dismissed the application for approval of the agreement. The Commission ordered that the application be returned to the applicant with directions to address the deficiencies and resubmit the application for consideration. The Commission also noted that the applicant should ensure compliance with all procedural requirements in any future applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established