Geocon Constructors Pty Ltd

[2016] FWCA 202

[2016] FWCA 202

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Geocon Constructors Pty Ltd

(AG2015/6773)

GEOCON CONSTRUCTORS (ACT) PTY LTD AND EMPLOYEES

ENTERPRISE AGREEMENT 2015-2019

Australian Capital Territory

COMMISSIONER ROE MELBOURNE, 13 JANUARY 2016

Application for approval of the Geocon Constructors (ACT) Pty Ltd and Employees

Enterprise Agreement 2015-2019.

[1]        An application has been made for approval of an enterprise agreement known as the

Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2015-2019 (the

Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

It has been made by Geocon Constructors (ACT) Pty Ltd. The Agreement is a single

enterprise agreement.

[2]        The CFMEU objected to the approval of the Agreement on two grounds. Firstly, the

CFMEU submit that Section 186(2)(a) has not been met because the employer misled or

coerced the employees into appointing person(s) other than the CFMEU as their bargaining

representative and to subsequently not reappoint the CFMEU as a bargaining representative.

As a result, this may have affected the outcome of the bargaining and the vote of the

Agreement. Evidence was given by the CFMEU from two officials, which purported to

substantiate this concern. I was not satisfied that the evidence of the two CFMEU officials

was sufficient enough to establish that employees were coerced or misled, however, it did

provide a basis for further investigation of the matter.

[3]        On 21 December 2015, the Fair Work Commission sent correspondence to the

employer and the CFMEU requesting the employer provide each employee with an

opportunity to, on a confidential basis, let me know if they had any concerns about the

process by which they appointed a bargaining representative other than the CFMEU and, if

they had a concern about the process leading up to the vote. The employees were afforded a 7

day timeframe in which they could respond. I did not receive correspondence from any

employees expressing any concerns.

[4]        Secondly, the CMFEU submit that Section 186(2)(d) has not been complied with

because the Agreement contains terms that are less beneficial than the equivalent terms and

conditions in the relevant reference instrument. I agreed with some of the points that the
[2016] FWCA 202

CFMEU raised. To address these concerns, correspondence was sent to the employer on 11

December 2015 and I requested the employer to provide undertakings. On 16 December 2015

the employer provided the requested undertakings. A copy of the undertakings is attached in

Annexure A. I am satisfied that the undertakings will not cause financial detriment to any

employee covered by the Agreement and that the undertakings will not result in substantial

changes to the Agreement.

[5]        As such, I am satisfied that each of the requirements of ss.186, 187 and 188 as are

relevant to this application for approval have been met. The Agreement does not cover all of

the employees of the employer, however, taking into account the factors in Section 186(3) and

(3A) I am satisfied that the group of employees was fairly chosen.

[6]        The Agreement was approved on 13 January 2016 and, in accordance with s.54, will

operate from 21 February 2016. The nominal expiry date of the Agreement is 13 January

2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code G, AE417409 PR576017>

[2016] FWCA 202

Annexure A

[2016] FWCA 202