Bitupave Ltd T/A Boral Asphalt, Australian Workers’ Union, The Summary

[2023] FWCA 227

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bitupave Ltd T/A Boral Asphalt, Australian Workers’ Union, The

(AG2022/5474)

BORAL ASPHALT NSW & ACT ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 23 JANUARY 2023

Application for approval of the Boral Asphalt NSW & ACT Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Boral Asphalt NSW & ACT Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Bitupave Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 20 January 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Asphalt Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, 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.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 January 2023. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves Bitupave Ltd trading as Boral Asphalt, represented by the Australian Workers’ Union, seeking approval of the Boral Asphalt NSW & ACT Enterprise Agreement 2022. The application was heard by the Fair Work Commission, which must determine whether the agreement meets the criteria for approval under the Fair Work Act 2009. The union and the employer submitted their positions, which were subject to scrutiny regarding compliance with legal standards and fairness to employees.

The central legal issues revolved around whether the agreement was made in good faith, if it contained the necessary minimum terms and conditions, and whether it appropriately balanced the interests of both parties. Additionally, the Commission needed to assess if the agreement provided for a fair and reasonable process for resolving disputes between the employer and employees. The union argued that the agreement was fair and represented the best interests of the employees, while the employer contended that it was reasonable and necessary for business operations.

The Commission found that the agreement was made in good faith and contained all the required minimum terms and conditions. It determined that the agreement was fair and reasonable, balancing the interests of both parties. The Commission also held that the agreement provided for a fair process for resolving disputes, meeting the requirements of the Fair Work Act. Consequently, the Commission approved the Boral Asphalt NSW & ACT Enterprise Agreement 2022.

The final orders of the Commission were that the Boral Asphalt NSW & ACT Enterprise Agreement 2022 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by it. The approval was subject to the agreement being amended to address any identified non-compliance with the Act.

Bitupave Ltd T/A Boral Asphalt, Australian Workers’ Union, The

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established