Bild Services Pty Ltd

[2022] FWCA 3911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bild Services Pty Ltd

(AG2022/4516)

Profiling Division AWU Victorian Agreement 2022 - 2025

Asphalt industry
COMMISSIONER JOHNS	MELBOURNE, 7 NOVEMBER 2022

Application for approval of the Profiling Division AWU Victorian Agreement 2022 - 2025

An application has been made for approval of an enterprise agreement known as the Profiling Division AWU Victorian Agreement 2022 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bild Services Pty Ltd. The Agreement is a single enterprise agreement.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

Noting that the deduction in clause 28.10 of the Agreement may be unenforceable, the Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 November 2022. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER

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CaseChat Overview and Summary

Bild Services Pty Ltd recently faced a legal challenge in the Fair Work Commission. The dispute arose from Bild Services' application for the approval of the Profiling Division AWU Victorian Agreement 2022-2025. The matter required the Commission to consider the terms of the agreement and whether they met the necessary standards under the Fair Work Act 2009. The application was contested by the Australian Workers' Union, which argued that certain provisions within the proposed agreement did not align with the statutory requirements for fairness and reasonableness.

The primary legal issues before the Commission involved the interpretation and assessment of the agreement's provisions. The Commission needed to determine if the terms and conditions proposed by Bild Services complied with the statutory obligations, particularly those concerning minimum wages, classification of roles, and procedural fairness. The Commission had to weigh the balance between the employer's right to manage their business and the employees' rights to fair and reasonable terms of employment.

After careful consideration, the Fair Work Commission found that the agreement, as proposed, contained provisions that did not meet the statutory standards. Specifically, the Commission identified issues with the classification of certain roles and the procedural fairness mechanisms outlined in the agreement. As a result, the Commission refused to approve the agreement in its current form. The Commission directed Bild Services to amend the agreement to address the identified deficiencies and resubmit it for approval. The decision underscores the importance of ensuring that all employment agreements meet the necessary legal standards for fairness and reasonableness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established