ENTERPRISE AGREEMENTS – genuinely agree – ss.185, 186, 604 Fair Work Act 2009 – appeal – Full Bench – Commission at first instance dismissed application for approval of BGC Contracting P/L’s Mining Enterprise Agreement 2016 (the proposed agreement) – Commission held the proposed agreement was not genuinely agreed to by the employees who would be covered – not satisfied appellant took all reasonable steps to comply with its relevant access period obligations or that the effect of the proposed agreement was explained to employees – appellant submitted permission to appeal should be granted; appeal should be upheld and the first instance decision quashed – a number of grounds of appeal related to procedural fairness and that the various sections of the legislation were not correctly applied nor construed when dismissing the proposed agreement application – appellant asserted amongst other issues that it was not afforded the opportunity to provide undertakings to rectify the BOOT findings despite the parties express contemplation to do so – respondent posited the Commission’s first instance conclusion that the proposed agreement had not been genuinely agreed to was ineluctable – Full Bench held that appellant was denied procedural fairness because the appellant was not provided an opportunity to file further submissions in relation to undertakings after the first instance decision – not satisfied the employees had no stake in the proposed agreement – permission to appeal granted – in order to overcome the denial of procedural fairness appeal upheld – decision at first instance quashed – referred to Gostencnik DP for rehearing. Appeal by BGC Contracting P/L against decision of Deputy President Binet of 28 February 2017 [2017] FWC 852 Re: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Ors
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