Construction, Forestry, Mining and Energy Union v BGC Contracting Pty Ltd - [2017] FWC 5651

[2017] FWC 5651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Construction, Forestry, Mining and Energy Union

BGC Contracting Pty Ltd

(B2017/933)

COMMISSIONER MCKENNA

SYDNEY, 1 NOVEMBER 2017

Application for majority support determination.

The Construction, Forestry, Mining and Energy Union (“CFMEU”) has made an application, pursuant to s.236 of the Fair Work Act 2009 (“the Act”), for a majority support determination concerning employees of BGC Contracting Pty Ltd (“BGC”).

In circumstances where the nominal term of the existing enterprise agreement has expired, the CFMEU seeks to bargain for an enterprise agreement with BGC in respect of certain BGC employees who are engaged in civil construction works in New South Wales. BGC has declined to bargain and also opposes the application for a majority support determination.

Section 236(1) of the Act provides that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for a determination that a majority of the employees who will be covered by the enterprise agreement want to bargain with the employer, or employers, that will be covered by the agreement. Section 236(2) of the Act provides that the application must specify: (a) the employer, or employers, that will be covered by the enterprise agreement; and (b) the employees who will be covered by the agreement. These criteria have been met.

Section 237 of the Act sets out the circumstances when the Commission must make a determination. In that regard, s.237(1) provides that the Commission must make a determination in relation to a proposed single-enterprise agreement if: (a) an application for the determination has been made; and (b) the Commission is satisfied of the matters set out in s.237(2) in relation to the agreement. The cumulative s.237(2) matters as to which the Commission must be satisfied are as follows:

·   That a majority of the employees: (i) who are employed by the employer or employers at a time determined by the Commission; and (ii) who will be covered by the enterprise agreement want to bargain. I am satisfied, and I do not understand there to be any issue, that this is the case. (Having earlier considered a CFMEU-provided petition in tandem with a BGC-provided list of employees, I was satisfied, and advised the parties, that a majority of relevant employees wish to bargain.)
·   That the employer, or employers, that will be covered by the enterprise agreement have not yet agreed to bargain, or initiated bargaining, for the agreement. I am satisfied, and I do not understand there to be any issue, that this is the case.
·   That the group of employees who will be covered by the enterprise agreement was fairly chosen. I am satisfied, and I do not understand there to be any issue, that this is the case.
·   That it is reasonable in all the circumstances to make the determination. The reasonableness of making a determination is in contention, being a matter to which I now turn to…

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.

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Details

Case: [2017] FWC 5651
Decision Date: 1 NOVEMBER 2017

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union and BGC Contracting Pty Ltd. The dispute centred on the application for a majority support determination, where the union sought to have a proposed enterprise agreement recognised as applicable to all employees in the relevant bargaining unit, despite not having majority support among the employees. The matter was heard by the Fair Work Commission, Australia's independent statutory body responsible for the resolution of workplace disputes and the administration of workplace laws.

The primary legal issue the Commission needed to address was whether the union had demonstrated sufficient evidence to establish that a majority of the employees in the bargaining unit supported the proposed agreement, as required under section 173 of the Fair Work Act 2009. The union argued that a majority of employees supported the agreement, while BGC Contracting contended that the union had not provided adequate evidence to support this claim. The Commission was tasked with determining the validity of the union's application based on the evidence presented.

In its decision, the Commission closely examined the evidence provided by the union to ascertain whether it met the statutory threshold for majority support. The Commission found that the union had not provided sufficient evidence to demonstrate that a majority of the employees supported the proposed agreement. Consequently, the application for a majority support determination was dismissed. The Commission emphasised the importance of robust evidence in support of such applications, underscoring the need for compliance with the statutory requirements for majority support.

The Fair Work Commission ordered that the union's application for a majority support determination be dismissed, thereby preventing the proposed enterprise agreement from being recognised as applicable to all employees in the bargaining unit. This outcome highlights the necessity for unions to provide compelling evidence when seeking to establish majority support for an enterprise agreement.

Orders