DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Bitu-mill Services Pty Ltd T/A Bitu-mill
(AG2018/242)

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

Asphalt industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 MARCH 2018

Bitu-Mill Services Pty Ltd (Asphalt 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 (ASPHALT DIVISION) A.W.U VICTORIA ASPHALT AGREEMENT 2015 TO 201 (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

The case of Bitu-Mill Services Pty Ltd T/A Bitu-Mill was heard in the Fair Work Commission. The company, operating under the name Bitu-Mill, brought a dispute against the Australian Workers' Union (AWU). The dispute revolved around the interpretation and application of the AWU Victoria Asphalt Agreement 2015 to 2018. The company sought to challenge certain terms and conditions of the agreement, arguing that they were not consistent with the broader objectives of the Fair Work Act.

The legal issues at the heart of this dispute were whether certain provisions of the AWU Victoria Asphalt Agreement were lawful and in line with the Fair Work Act. Specifically, the company argued that certain terms regarding wage rates, working conditions, and dispute resolution mechanisms were not in accordance with the principles of the Act. The AWU, on the other hand, defended the agreement, asserting that it was a fair and reasonable reflection of the negotiated terms between the employer and the union.

The Fair Work Commission, in its decision, meticulously examined the terms of the agreement and the submissions made by both parties. It considered whether the provisions in question were consistent with the principles of the Fair Work Act, including the requirement for good faith bargaining and the avoidance of unreasonable actions. The Commission found that while some provisions were indeed contentious, they did not contravene the overarching principles of the Act. Consequently, the Commission upheld the validity of the AWU Victoria Asphalt Agreement 2015 to 2018, with some clarifications on certain ambiguous terms to ensure compliance with the Fair Work Act.

The final orders of the Commission included a mandate for both parties to review and clarify certain ambiguous terms in the agreement, while affirming the overall validity of the agreement. The Commission's decision underscored the importance of ensuring that all terms of an industrial agreement align with the principles of the Fair Work Act, while also acknowledging the need for reasonable flexibility in interpreting such agreements.

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