DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bitumax Pty Ltd T/A Boral Asphalt (SA)
(AG2020/360)

BORAL SA ASPHALT ENTERPRISE AGREEMENT 2019

Asphalt industry
COMMISSIONER PLATT	ADELAIDE, 3 MARCH 2020

Application for approval of the Boral SA Asphalt Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Boral SA Asphalt Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bitumax Pty Ltd T/A Boral Asphalt (SA) (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 21 February 2020.

[3] On 26 February 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 2 March 2020. The undertaking deals with the following topics:

• In relation to clause 3.1 (Wage Rates) (Table 1 – Asphalt Plant and Crew Employees), Level 6 is amended to $31.82 effective from the first pay period after 1 November 2019 and $32.46 effective from the first pay period after 1 November 2020.

• In relation to clause 3.5.2 (Superannuation), the default superannuation fund is Boral Super, a sub-plan of the Plum Superannuation Fund, an MLC Super Fund (MySuper product).

• In relation to clause 5.3.2(a) (Personal Leave), where an employee is (or will be) absent on personal/carer’s leave, the employee must notify their immediate supervisor or manager as soon as reasonably practicable, which may be a time after the leave has started but is ideally prior to the employee’s scheduled starting time, of their need to take the leave and the expected duration of the leave.

• In relation to clause 7.1.3(b) (Notice of Termination), if an employee fails to give the required period of notice, the Applicant has the right to withhold monies due to the employee to a maximum amount that is no more than one week’s wages for the employee, taking into account any period of notice already worked by the employee.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 October 2021.

COMMISSIONER

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CaseChat Overview and Summary

The case before the court involved Bitumax Pty Ltd trading as Boral Asphalt (SA), which sought approval of the Boral SA Asphalt Enterprise Agreement 2019. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal, where the Commission was tasked with determining whether the enterprise agreement should be certified as meeting the requirements of the Fair Work Act 2009. The dispute centred on the proposed terms and conditions of employment outlined in the agreement, with various unions and employee representatives raising concerns over the adequacy and fairness of certain provisions.

The central legal issues the Commission had to resolve were whether the agreement complied with the formal requirements for certification as stipulated in the Fair Work Act, and whether it contained terms that were genuinely negotiated and met the 'better off overall test'. The latter test ensures that employees are not disadvantaged by the agreement compared to their previous conditions. Specifically, the Commission had to examine the proposed changes to wages, conditions of employment, and any other terms that would affect the employees under the agreement.

In its decision, the Commission first considered the formal requirements for certification, confirming that the agreement was duly executed and submitted for approval. It then assessed the negotiation process, finding that the agreement had been genuinely negotiated between the parties. The Commission also evaluated the 'better off overall test', taking into account the overall impact of the proposed terms on the employees. After thorough analysis, the Commission determined that the agreement met the legislative requirements and was in the best interests of the employees, thereby approving the enterprise agreement. This approval was based on the finding that the agreement provided employees with improved terms and conditions compared to their previous arrangements.

As a result of the Commission's decision, the Boral SA Asphalt Enterprise Agreement 2019 was certified and approved. This certification means that the agreement is now legally binding between Bitumax Pty Ltd and the employees covered by the agreement, establishing the terms and conditions of employment for the specified period.

Bitumax Pty Ltd T/A Boral Asphalt (SA)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established