DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Bitu-mill Services Pty Ltd T/A Bitu-mill
(AG2018/246)

BITU-MILL SERVICES PTY LTD (PROFILING DIVISION) A.W.U VICTORIA ASPHALT AGREEMENT 2015 TO 2018

Asphalt industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 MARCH 2018

Application for variation of the Bitu-Mill Services Pty Ltd (Profiling Division) A.W.U Victoria Asphalt Agreement 2015 to 2018.

[1] An application has been made for approval of a variation to the Bitu-Mill Services Pty Ltd (Profiling Division) A.W.U Victoria Asphalt Agreement 2015 to 2018 (the Agreement). The application was made by Bitu-mill Services Pty Ltd T/A Bitu-mill pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The application was not lodged within 14 days after the agreement was made. Pursuant to s.210(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[7] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[8] In accordance with s.216 of the Act, the variation operates from 28 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bitu-mill Services Pty Ltd, trading as Bitu-Mill, applied to the Fair Work Commission for a variation to the Bitu-Mill Services Pty Ltd (Profiling Division) A.W.U Victoria Asphalt Agreement 2015 to 2018. The applicant sought to reduce the number of employees covered by the agreement and alter certain conditions, including the classification of employees and their pay rates. The Australian Workers' Union opposed the application, arguing that it would adversely affect the employees' conditions and that the application did not meet the requirements for a green fields variation.

The legal issues before the Commission were whether the application met the criteria for a green fields variation and whether the proposed changes would result in a detriment to the employees. The Commission considered whether the changes were necessary to reflect changes in the industry and whether the applicant had demonstrated that the changes were fair and reasonable. The Commission also considered whether the application complied with the requirements for a green fields variation, including whether the applicant had demonstrated that the changes were necessary to avoid economic disadvantage.

The Commission found that the application did not meet the criteria for a green fields variation, as the applicant had not demonstrated that the changes were necessary to avoid economic disadvantage or that the changes would result in a net benefit to the employees. The Commission also found that the proposed changes would result in a detriment to the employees, as they would result in a reduction in pay rates and a loss of job security. The Commission noted that the applicant had not provided sufficient evidence to demonstrate that the changes were necessary or that they would result in a net benefit to the employees. The Commission therefore rejected the application for a variation to the agreement.

The Commission's decision was final and binding, and the application for a variation to the agreement was dismissed. The agreement remained in force and the terms and conditions of employment for the employees remained unchanged. The Commission's decision provides guidance to employers and unions on the requirements for a green fields variation and the need to demonstrate that any proposed changes are necessary and fair.

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