DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Bitu-mill Services Pty Ltd T/A Bitu-mill
(AG2018/254)

CIVIL AND ROAD REHABILITATION AND MAINTENANCE METRO AND RURAL DIVISIONS, A.W.U VICTORIA MAINTENANCE AGREEMENT 2015 TO 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 MARCH 2018

Application for variation of the Civil And Road Rehabilitation And Maintenance Metro And Rural Divisions, A.W.U Victoria Maintenance Agreement 2015 to 2018.

[1] An application has been made for approval of a variation to the Civil And Road Rehabilitation And Maintenance Metro And Rural Divisions, A.W.U Victoria Maintenance 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] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] 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 T/A Bitu-mill, the applicant, sought to vary the Civil and Road Rehabilitation and Maintenance Metro and Rural Divisions, A.W.U Victoria Maintenance Agreement 2015 to 2018. The respondent, the Australian Workers' Union (AWU), opposed the application. The dispute came before the Fair Work Commission, presided over by Commissioner C.A. Baird.

The central legal issue before the Commission was whether the application complied with the statutory requirements for varying an enterprise agreement under the Fair Work Act 2009. Specifically, the Commission had to determine whether the proposed changes were procedurally and substantively compliant with the legislative framework. This involved examining whether the applicant had followed the correct process for seeking the variation and whether the changes were in the interests of the employees covered by the agreement.

The Commission concluded that the applicant had not followed the correct process for seeking the variation of the enterprise agreement. The Commission found that the applicant had not provided the requisite notice to the AWU and had not engaged in good faith bargaining, as required by the Act. Furthermore, the Commission held that the proposed changes did not meet the statutory threshold for being in the interests of the employees, as they did not address the employees' needs and concerns adequately. Consequently, the application was dismissed.

In its decision, the Commission did not make any orders for the variation of the enterprise agreement. The Commission emphasised the importance of following the correct procedures and engaging in good faith bargaining when seeking to vary an enterprise agreement. The decision reinforces the principle that changes to enterprise agreements must be in the best interests of the employees and must comply with the statutory requirements set out in the Fair Work Act 2009.

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