Bitupave Ltd

[2013] FWCA 2517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Bitupave Ltd
(AG2013/826)

BORAL ASPHALT NSW & ACT ENTERPRISE AGREEMENT 2012

Asphalt industry
COMMISSIONER BULL	SYDNEY, 24 APRIL 2013

Application for approval of the Boral Asphalt NSW & ACT Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Boral Asphalt NSW & ACT Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement covers those employees as defined in Schedule A of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[4] 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 this organisation.

[5] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 1 May 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

Bitupave Ltd applied to the Fair Work Commission for approval of the Boral Asphalt NSW & ACT Enterprise Agreement 2012, which sought to establish a new enterprise bargaining agreement for employees in the asphalt industry. The application was brought before the Fair Work Commission, the federal workplace relations tribunal in Australia, to determine if the agreement met the necessary criteria for approval under the Fair Work Act 2009. The primary legal issue before the Commission was whether the agreement complied with the statutory requirements of the Act, particularly in terms of the procedural fairness and the substantive provisions of the agreement.

The Commission examined the procedural fairness of the bargaining process and the substantive fairness of the agreement. It assessed whether the agreement was made in good faith and whether it contained the minimum terms and conditions required by law. The Commission considered the nature of the industry, the bargaining power of the parties, and the overall fairness of the terms and conditions proposed in the agreement. In reaching its decision, the Commission applied relevant case law and statutory provisions, including the requirement that the agreement must not predetermine the outcome of future enterprise bargaining.

After thorough consideration, the Commission found that the agreement met the necessary criteria for approval. The bargaining process was deemed to have been conducted in good faith, and the substantive terms of the agreement were considered to be fair and reasonable. The Commission was satisfied that the agreement provided adequate protections for employees and did not predetermine the outcome of future bargaining. Consequently, the Commission approved the Boral Asphalt NSW & ACT Enterprise Agreement 2012. This decision underscores the importance of ensuring that enterprise agreements are both procedurally and substantively fair, providing a balance between the rights of employers and employees in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established