Geocon Constructors (ACT) Pty Ltd T/A Geocon - [2023] FWC 2676

[2023] FWC 2676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Geocon Constructors (ACT) Pty Ltd T/A Geocon

(AG2023/2743)

GEOCON CONSTRUCTORS (ACT) PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2023 – 2027

Building, metal and civil construction industries

DEPUTY PRESIDENT SLEVIN

SYDNEY, 13 OCTOBER 2023

Application to approve the Geocon Constructors (Act) Pty Ltd and Employees Enterprise Agreement 2023 – 2027

An application has been made for approval of an enterprise agreement known as the Geocon Constructors (Act) Pty Ltd and Employees Enterprise Agreement 2023 – 2027 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Geocon Constructors (ACT) Pty Ltd T/A Geocon (Geocon). The Agreement is a single enterprise agreement.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to be heard in the matter. Geocon opposed the CFMMEU’s application. The Commission has broad powers under s 590 of the Act to inform itself in relation to any matter before it in such manner as it sees fit. I granted the CFMMEU’s application as I considered I would be assisted by hearing from the CFMMEU. This was on the basis that the CFMMEU is a registered organisation entitled to represent employees within the job classifications contemplated by the Agreement. The Agreement covers employees in the building and construction industry. The CFMMEU has extensive history of industrial representation of workers in the building and construction industry. I regarded the CFMMEU as having sufficient interest in the matter and possessing relevant industry knowledge and experience such that I would be assisted by hearing it in relation to the application.

Geocon was represented by the Master Builders Association of the ACT.

The application along with a Form F17 Statutory Declaration of Employer, Form F18A Statutory Declaration of Bargaining Representative and supporting documents were filed on 11 August 2023 using the Commission’s online lodgement service.

The Form F17 statutory declaration was made by Damon Smith, General Manager, and the Form F18A statutory declaration was made by Dean Stephen Lewis. In response to material filed by the CFMMEU, Geocon provided witness statements of Mr Lewis and Mathew Darren Holt, a construction worker covered by the Agreement. The CFMMEU relied upon witness statements from two organisers in the CFMMEU’s Construction & General Division in its ACT Divisional Branch, Joshua Bolitho and Layth Cole. The parties also provided written submissions. None of the witnesses were required for cross examination. The parties agreed to have the matter decided on the papers.

The CFMMEU contends that the Agreement should not be approved because, on the material provided, the Commission cannot be satisfied it has been genuinely agreed and on the basis that it does not meet the better off overall test (BOOT).

Background

Geocon is engaged in the construction of multi-unit residential apartments in the ACT. It issued a Notice of Representational Rights (NERR) to employees on 10 July 2023 by email. On 11 July 2023 printed…

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.

Continue reading Geocon Constructors (ACT) Pty Ltd T/A Geocon

Details

AGLC: Geocon Constructors (ACT) Pty Ltd T/A Geocon [2023] FWC 2676
Case: [2023] FWC 2676
Decision Date: 13 OCTOBER 2023

CaseChat Overview and Summary

Geocon Constructors (ACT) Pty Ltd T/A Geocon applied for the approval of an enterprise agreement under the Fair Work Act 2009. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) opposed the application, arguing that the agreement should not be approved because it had not been genuinely agreed to and did not meet the better off overall test (BOOT). The Deputy President found that the employer had failed to provide employees with a full copy of the agreement and explain the terms of the final proposal before the vote, in breach of the Commission's Principles on Genuine Agreement. As a result, the Deputy President was not satisfied that the agreement was genuinely agreed to by the employees and dismissed the application for approval.

The court considered the evidence provided by the parties regarding the bargaining process and the terms of the proposed agreement. The CFMMEU argued that the employer had not provided employees with a full copy of the agreement before the vote and had failed to adequately explain the terms of the final proposal. The employer argued that the employees had been provided with a copy of the proposed agreement and had been informed of any changes before the vote. The Deputy President found that the employer had not provided employees with a full copy of the agreement or explained the terms of the final proposal, in breach of the Commission's Principles on Genuine Agreement. The court was not satisfied that the agreement had been genuinely agreed to by the employees and dismissed the application for approval.

Orders