DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bis Industries Limited T/A Bis
(AG2018/7066)

BIS WHITEHAVEN ENTERPRISE AGREEMENT 2018

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 24 MAY 2019

Application for approval of the Bis Whitehaven Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Bis Whitehaven Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bis Industries Limited T/A Bis. The Agreement is a single enterprise agreement.

[2] The Employer has provided written 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 31 May 2019. The nominal expiry date of the Agreement is 24 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Bis Industries Limited trading as Bis, sought approval of the Bis Whitehaven Enterprise Agreement 2018. The application was before the Fair Work Commission. The respondents were the Australian Manufacturing Workers Union and a number of individual employees who had not agreed to the terms of the proposed enterprise agreement. The dispute centred on whether the agreement met the requirements for approval under the Fair Work Act 2009, particularly concerning the proper process for bargaining and the adequacy of the agreement's terms and conditions.

The legal issues included whether the agreement was genuinely the product of bargaining between the parties and whether it met the "better off overall test." The court had to determine if the agreement provided for terms and conditions that were at least as good as the relevant awards or existing agreements, and whether the agreement was made in good faith and met the requirements of procedural fairness. Additionally, the court needed to consider whether the agreement complied with the requirements for employee representation and whether it covered all necessary matters.

The Fair Work Commission found that the agreement was genuinely the product of bargaining, as it had been negotiated between the parties and reflected their respective positions. The court determined that the agreement met the better off overall test, providing employees with improved terms and conditions compared to their previous awards or agreements. The Commission also concluded that the agreement was made in good faith and complied with procedural fairness requirements. It found that the agreement adequately represented the employees' interests and covered all necessary matters. Consequently, the Fair Work Commission approved the Bis Whitehaven Enterprise Agreement 2018.

Bis Industries Limited T/A Bis

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established