DECISION

Fair Work Act 2009
s.185—Enterprise agreement

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

DEPUTY PRESIDENT KOVACIC

CANBERRA, 24 APRIL 2019

Application for approval of the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2018-2022 – request from the Construction, Forestry, Maritime, Mining and Energy Union to be heard in respect of the application – request opposed by the Applicant – request granted.

[1] An application was 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) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 27 July 2018 the Fair Work Commission (the Commission) wrote to Geocon regarding the notice of employee representational rights provided with the application. The correspondence stated inter alia that:

“Upon preliminary review of the application, it appears that no content has been entered into any of the blank fields in the first paragraph of the notice of employee representational rights. As a result, it appears that the notice does not contain content that is prescribed by Schedule 2.1 of the Fair Work Regulations.

…

It would appear that, in line with the above mentioned decisions, the notice in this case does not comply with the Act as it departs from the form prescribed in Schedule 2.1 of the Regulations, and is therefore invalid. It seems to follow that as no valid notice of employee representational rights was given to employees, the Agreement cannot be approved.

If you would like to be heard in relation to the above, the matter may be listed for a hearing.

Alternatively, if you wish to withdraw the application, please file a notice of discontinuance.

The Commission requests that this correspondence be addressed as soon as possible but not later than 29 July 2018 by providing a response to member.assist@fwc.gov.au.”

[3] Later that day, Ms Ashlee Berry, Legal and Compliance Director with the Master Builders Association of the ACT (MBA), replied in the following terms to the abovementioned correspondence from the Commission:

“Thank you for your letter.

On reviewing the documents I submitted for filing, I have realised that I attached the incorrect Notice (our template rather than the specific notice Geocon provided to employees).

Please find attached for filing the notice that was submitted.

I have copied Mr Tristan Ferris (Legal Counsel at Geocon) in to this correspondence and he will see that this email and the correct document is circulated to the necessary people as required.

If you have any queries or require anything further please contact me on the details below.”

[4] Also on 27 July 2018 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sent an email to the Commission stating that it wished to be heard in respect of the application and requesting a copy of…

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 2775
Case: [2019] FWC 2775
Decision Date: 24 APRIL 2019

CaseChat Overview and Summary

In the recent decision of the Fair Work Commission, Geocon Constructors (ACT) Pty Ltd T/A Geocon was the subject of an application for approval of the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2018-2022. The Construction, Forestry, Maritime, Mining and Energy Union sought to be heard in respect of the application, a request which was opposed by the applicant. The Commission considered the matter and ultimately granted the request for the Union to be heard.

The legal issues before the Commission related to whether the Union was entitled to be heard in respect of the application, and if so, whether their participation would be in the interests of justice. The applicant argued that the Union was not directly affected by the agreement and therefore had no standing to be heard. The Union, on the other hand, argued that they represented a significant portion of the workforce and had an interest in ensuring that the agreement was fair and reasonable.

The Commission found that the Union had standing to be heard as they represented employees who would be affected by the agreement. The Commission also found that it was in the interests of justice for the Union to be heard, as their participation would ensure that the rights and interests of the employees were properly considered. The Commission granted the Union's request to be heard, and the matter will now proceed with the Union's participation.

The outcome of the decision is that the Union will have the opportunity to present their views and arguments in relation to the proposed enterprise agreement. This will ensure that the rights and interests of the employees are properly considered, and that the agreement is fair and reasonable. The final orders of the Commission will be communicated in due course.

Orders