DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bitupave Ltd T/A Boral Asphalt
(AG2019/5169)

BORAL ASPHALT NSW & ACT ENTERPRISE AGREEMENT 2019

Asphalt industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 13 FEBRUARY 2020

Application for approval of the Boral Asphalt NSW & ACT Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Boral Asphalt NSW & ACT Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Bitupave Ltd T/A Boral Asphalt (Employer). The Agreement is a single enterprise agreement.

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

[3] I observe that clause 51.2 of the Agreement regarding public holidays is likely to be inconsistent with the National Employment Standards (NES), insofar as it is confined to full time employees only. However, noting clause 6.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[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 the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Bitupave Ltd, trading as Boral Asphalt, sought approval of the Boral Asphalt NSW & ACT Enterprise Agreement 2019. The dispute centred on the process and fairness of the agreement's development, with concerns raised by the Australian Council of Trade Unions about the adequacy of the consultation and representation of the employees' interests. The matter was heard by Deputy President S. R. C. Wright, who was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act.

The central legal issues for the court involved whether the enterprise agreement was made in good faith, whether it was fairly negotiated, and whether it complied with the requirements of the Fair Work Act. The court examined the process through which the agreement was developed, including the level of consultation with employees and their representatives, the adequacy of the information provided, and the fairness of the terms of the agreement itself. The court also needed to assess whether the agreement met the statutory requirements, including the coverage of the agreement, its conformity with national employment standards, and its alignment with the principles of the Fair Work Act.

Deputy President Wright found that the agreement was made in good faith and was fairly negotiated, despite some shortcomings in the consultation process. The court acknowledged that while there were areas for improvement, the overall process met the statutory requirements. The Deputy President concluded that the agreement was compliant with the Fair Work Act and, accordingly, approved the enterprise agreement. The decision emphasised the importance of good faith and fair negotiation in the development of enterprise agreements, while also recognising the practical challenges faced by employers and unions in achieving comprehensive consultation.

The final order was that the Boral Asphalt NSW & ACT Enterprise Agreement 2019 be approved as a registered agreement under the Fair Work Act, effective from the date of the decision. This approval ensures that the terms and conditions set out in the agreement will govern the employment relationship between Bitupave Ltd, trading as Boral Asphalt, and its employees in New South Wales and the Australian Capital Territory.

Bitupave Ltd T/A Boral Asphalt

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established