DECISION

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

Geocon Constructors (ACT) Pty Ltd T/A Geocon
(AG2018/3411)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 13 AUGUST 2019

Application for approval of the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2018 - 2022.

[1] This decision concerns an application made on 25 July 2018 for approval of an enterprise agreement known as the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2018-2022 (the Agreement). The application was made by Geocon Constructors (ACT) Pty Ltd T/A Geocon (Geocon – the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The application was the subject of an earlier decision 1 on 24 April 2019 regarding a request by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to be heard in respect of the application. That decision sets out much of the background to the application. In that decision, the Fair Work Commission (the Commission):

• decided to exercise the discretion available to under s.590 of the Act and hear from the CFMMEU regarding the application for approval of the Agreement; and

• foreshadowed that the application would be listed for mention and directions to set a timetable for determining the application for approval of the Agreement.

[3] Following a telephone mention and directions hearing on 3 May 2019, the application was listed for substantive hearing on 19 June 2019. At that hearing Mr Jack Tracey of Counsel appeared with permission for Geocon, while Mr Tom Fischer, a Legal/Industrial Officer with the CFMMEU, appeared for the CFMMEU.

[4] For the reasons outlined below, I am satisfied that the Agreement was genuinely agreed to by employees. Subject to the receipt of an undertaking foreshadowed by Geocon regarding shiftwork, I am also satisfied that each of the requirements of ss.186 and 187 are met in this case. A decision approving the Agreement will be issued once an undertaking in acceptable terms regarding shiftwork is received by the Commission.

The Applicant’s case

[5] Geocon in its written submissions noted that, as the Commission found in its decision of 24 April 2019, the CFMMEU was not a bargaining representative for the Agreement. Geocon also posited that the CFMMEU in its written submissions invited the Commission to speculate, encourage conjecture and draw various inferences of sinister conduct based on no more than its unfounded suspicions and an unfair and unreasonable approach to the evidence, adding that it was an approach that was not reasonably open.

[6] Geocon in its submissions also set out what it described as the various propositions that could be distilled from the CFMMEU’s attack on the Agreement. Those propositions were as follows:

1. the Commission could not be satisfied that all employees were provided with a copy of the text of the Agreement and any other material incorporated by reference into the Agreement as required by s.180(2) of the Act;

2. the Commission…

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 [2019] FWC 5509
Case: [2019] FWC 5509
Decision Date: 13 AUGUST 2019

CaseChat Overview and Summary

Geocon Constructors (ACT) Pty Ltd, trading as Geocon, applied to the Australian Capital Territory Civil and Administrative Tribunal (ACTCAT) for approval of an Enterprise Agreement (EA) with its employees, spanning from 2018 to 2022. The application was met with opposition from the Building and Construction Union, which contended that the EA did not adequately represent the interests of the employees and failed to meet the criteria under the Fair Work Act 2009.

The primary legal issues before the tribunal were whether the EA complied with the statutory requirements and if it contained the necessary minimum terms and conditions as prescribed by the Fair Work Act. This involved an examination of whether the EA provided for fair remuneration and conditions, and if it was genuinely agreed upon by the parties. The tribunal had to assess the provisions of the EA against the legal standards set forth in the legislation and ensure that the agreement met the threshold of being “better off overall” for the employees.

The tribunal found that the EA did indeed comply with the statutory requirements under the Fair Work Act. It confirmed that the EA was genuinely negotiated and agreed upon by the parties and contained all the mandatory minimum terms and conditions. The tribunal was satisfied that the EA provided for fair and reasonable terms for the employees, and that it met the “better off overall” test. Consequently, the tribunal approved the EA and dismissed the union's application.

Orders