[2019] FWCA 4848

The attached document replaces the document previously issued with the above code on 12 July 2019.

Pub ID has been updated to: AE504409. The years in the title of the Agreement have also been updated to ‘2019 to 2021’.

Member Assist

On behalf of Commissioner Johns

Dated 15 July 2019

[2019] FWCA 4848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bitu-mill Services Pty Ltd T/A Bitu-mill
(AG2019/2180)

CIVIL AND ROAD REHABILITATION AND MAINTENANCE METRO AND RURAL DIVISIONS, A.W.U VICTORIA MAINTENANCE AGREEMENT 2019 TO 2021

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 12 JULY 2019

Application for approval of the CIVIL AND ROAD REHABILITATION AND MAINTENANCE METRO AND RURAL DIVISIONS, A.W.U Victoria Maintenance Agreement 2019 to 2021.

[1] An application has been made for approval of an enterprise agreement known as the CIVIL AND ROAD REHABILITATION AND MAINTENANCE METRO AND RURAL DIVISIONS, A.W.U Victoria Maintenance Agreement 2019 to 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bitu-mill Services Pty Ltd T/A Bitu-mill. The Agreement is a single enterprise agreement.

[2] 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.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] 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.
[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 July 2019. The nominal expiry date of the Agreement is 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Bitu-mill Services Pty Ltd T/A Bitu-mill for the approval of the Civil and Road Rehabilitation and Maintenance Metro and Rural Divisions, A.W.U Victoria Maintenance Agreement 2019 to 2021. The application was brought under section 232 of the Fair Work Act 2009, which allows for the approval of enterprise agreements that have been negotiated in good faith but are unable to be registered due to certain provisions. The Australian Workers' Union (AWU) Victoria was the party opposing the application. The crux of the dispute lay in specific provisions of the agreement regarding casual loading rates and shift penalties, which the AWU contested on behalf of its members.

The central legal issues the Commission had to resolve were whether the provisions in question were consistent with the provisions of the Fair Work Act and the National Employment Standards. Specifically, the Commission needed to determine if the agreement's terms regarding casual loading rates and shift penalties met the criteria for approval under the Act, despite the fact that they did not align with the standard provisions of the National Employment Standards. The AWU argued that the terms were unfair and did not provide adequate protections for employees, while Bitu-mill Services maintained that the terms were fair and necessary for the operational efficiency of their business.

In considering the application, the Commission focused on the principles of good faith bargaining and the overall fairness of the agreement. The Commission noted that the agreement had been negotiated in good faith and that the terms, while not mirroring the National Employment Standards, were reasonable and necessary for the efficient operation of Bitu-mill Services. The Commission found that the provisions in question were not inconsistent with the overarching purposes of the Fair Work Act and were, therefore, eligible for approval. The decision underscored the importance of balancing the needs of employers and employees while ensuring that the agreement did not unfairly disadvantage either party.

The Fair Work Commission approved the Civil and Road Rehabilitation and Maintenance Metro and Rural Divisions, A.W.U Victoria Maintenance Agreement 2019 to 2021, finding it to be a fair and reasonable agreement despite the contested provisions. The Commission's decision was grounded in the principles of good faith bargaining and the specific context of the industry and business operations. The approval allowed the agreement to proceed, providing certainty and stability for both Bitu-mill Services and its employees.

Bitu-mill Services Pty Ltd T/A Bitu-mill

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established