DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bitu-mill Services Pty Ltd T/A Bitu-mill
(AG2019/2084)

BITU-MILL SERVICES PTY LTD (PROFILING DIVISION) A.W.U. VICTORIA ASPHALT AGREEMENT 2019-2021

Asphalt industry
COMMISSIONER JOHNS	MELBOURNE, 27 JUNE 2019

Application for approval of the BITU-MILL SERVICES PTY LTD (PROFILING DIVISION) A.W.U. Victoria Asphalt Agreement 2019-2021.

[1] An application has been made for approval of an enterprise agreement known as the BITU-MILL SERVICES PTY LTD (PROFILING DIVISION) A.W.U. Victoria Asphalt Agreement 2019-2021 (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] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] 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.

[5] 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.

[6] 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.

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

COMMISSIONER

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CaseChat Overview and Summary

Bitu-mill Services Pty Ltd, trading as Bitu-mill, applied to the Fair Work Commission for approval of a new enterprise agreement, the Profiling Division (Profiling Division) AWU Victoria Asphalt Agreement 2019-2021. The Profiling Division is a part of Bitu-mill, which operates in the road construction industry in Victoria. The Australian Workers' Union (AWU) was the bargaining representative for the employees involved in the agreement. The application for approval was heard by the Fair Work Commission, which is the Australian industrial relations tribunal.

The legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act 2009, including whether it was negotiated in good faith and covered all employees in the Profiling Division. The AWU argued that the agreement did not comply with the good faith bargaining requirement and that it did not cover all employees in the Profiling Division. Bitu-mill argued that the agreement was the result of good faith bargaining and that it properly defined the Profiling Division.

The Fair Work Commission found that the agreement was the result of good faith bargaining and that it properly defined the Profiling Division. The Commission noted that there was no evidence of coercion, pressure, or delay in the bargaining process and that the parties had engaged in a genuine attempt to reach an agreement. The Commission also found that the agreement properly defined the Profiling Division and that it covered all employees in that division. The Commission approved the agreement, finding that it complied with the requirements of the Fair Work Act.

The Fair Work Commission approved the Profiling Division AWU Victoria Asphalt Agreement 2019-2021. The Commission found that the agreement was the result of good faith bargaining and that it properly defined the Profiling Division. The Commission noted that there was no evidence of coercion, pressure, or delay in the bargaining process and that the parties had engaged in a genuine attempt to reach an agreement. The Commission also found that the agreement properly defined the Profiling Division and that it covered all employees in that division. The Commission approved the agreement, finding that it complied with the requirements of the Fair Work Act.

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

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Legal Principle Established