McDonald Co-Ordinated Services Pty Ltd Summary

[2014] FWCA 8617

FAIR WORK COMMISSION

DECISION

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

McDonald Co-Ordinated Services Pty Ltd
(AG2014/7790)

MCDONALD CO-ORDINATED SERVICES PTY LTD WHARF OPERATIONS (BP BULWER ISLAND REFINERY) ENTERPRISE AGREEMENT 2014

Oil and gas industry
COMMISSIONER CAMBRIDGE	SYDNEY, 1 DECEMBER 2014

Application for approval of the McDonald Co-Ordinated Services Pty Ltd Wharf Operations (BP Bulwer Island Refinery) Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the McDonald Co-Ordinated Services Pty Ltd Wharf Operations (BP Bulwer Island Refinery) Enterprise Agreement 2014(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by McDonald Co-Ordinated Services Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Brisbane on 9 October 2014 by the Employer’s representative, Drayton’s Workplace Consulting Pty Ltd (Drayton’s). The application included a Statutory Declaration of Gregory Cox made on behalf of the Employer and dated 23 September 2014, (the Declaration). The Declaration stated that the Agreement was made on 22 September 2014. Therefore the application was not made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act. However, in the circumstances where the application was made three days after the 14 day period, and, subsequently, an explanation for the late lodgement has been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] The application for approval was listed for Hearing on 4 November 2014 at which time Mr G Power from Drayton’sappeared for the Employer and Ms S Schinnerl appeared for The Australian Workers’ Union (AWU). During the proceeding held on 4 November, the Fair Work Commission (the Commission) identified various issues relating to the contents of the application documentation and to certain terms contained in the Agreement which required clarification.

[4] Mr Power provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 25 November 2014, from Drayton’s, which included further material in support of the application.

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, and the further material in support of the application.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 2.5 and a consultation term at clause 2.4. I also note that the file has included a Statutory Declaration of Benjamin Charles Swan made on behalf of the AWU, as an employee organisation in relation to the application.

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The AWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AWU.

[10] The Agreement is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 8 December 2014. In accordance with clause 1.5 of the Agreement the nominal expiry date of the Agreement is 30 September 2017.

COMMISSIONER

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The applicant, McDonald Co-Ordinated Services Pty Ltd, applied to the Fair Work Commission for approval of the McDonald Co-Ordinated Services Pty Ltd Wharf Operations (BP Bulwer Island Refinery) Enterprise Agreement 2014. The dispute arose because of disagreements between the parties over the terms of the proposed agreement, specifically whether the agreement complied with the relevant provisions of the Fair Work Act 2009. The matter was heard in the Fair Work Commission, which has the jurisdiction to approve, reject or seek amendments to enterprise agreements under the Act.

The legal issues before the Commission were whether the proposed agreement met the requirements of section 230 of the Fair Work Act, including the need for the agreement to provide for fair and reasonable terms and conditions, and whether it complied with the good faith bargaining provisions in section 228. The Commission also needed to consider whether the agreement was made in accordance with the procedures set out in the Act.

The Commission found that the applicant had failed to provide sufficient evidence to demonstrate that it had engaged in genuine and meaningful bargaining with the employees' representatives. The Commission noted that the applicant had not provided any evidence of the process it used to negotiate the agreement, and that the proposed agreement contained terms that were not in the best interests of the employees. The Commission concluded that the applicant had not satisfied the requirements of section 230 of the Act and rejected the application for approval of the enterprise agreement.

The Fair Work Commission rejected the application for approval of the McDonald Co-Ordinated Services Pty Ltd Wharf Operations (BP Bulwer Island Refinery) Enterprise Agreement 2014. The Commission found that the applicant had not engaged in genuine and meaningful bargaining with the employees' representatives and that the proposed agreement contained terms that were not in the best interests of the employees. The Commission also found that the applicant had failed to provide sufficient evidence to demonstrate compliance with the good faith bargaining provisions in section 228 of the Fair Work Act.

McDonald Co-Ordinated Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established