Blacktop Materials Engineering Pty Ltd Summary

[2013] FWCA 7886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Blacktop Materials Engineering Pty Ltd
(AG2013/9577)

BLACKTOP MATERIALS ENGINEERING ROY HILL AWU GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 10 OCTOBER 2013

Application for approval of the Blacktop Materials Engineering Roy Hill AWU Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Blacktop Materials Engineering Roy Hill AWU Greenfields Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

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

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is three years and six months from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Workers' Union (AWU) and Blacktop Materials Engineering Pty Ltd, the Fair Work Commission was tasked with approving the Blacktop Materials Engineering Roy Hill AWU Greenfields Agreement 2013. The primary dispute centred around the conditions of employment for workers at the Roy Hill Project, specifically regarding the application of the agreement to workers employed prior to the agreement's effective date. The applicants, the AWU, sought to have the agreement approved, while Blacktop Materials Engineering Pty Ltd argued against the approval on various grounds, including concerns about the agreement's retrospective application.

The key legal issues before the Commission involved whether the agreement was appropriate for approval under the Fair Work Act 2009, and specifically, whether the agreement's provisions were fair and reasonable. The Commission had to consider the extent to which the agreement's terms applied to existing employees and whether the agreement met the criteria for approval, including whether it was likely to provide better off overall terms and conditions (BOOT) for employees. The Commission also needed to determine the meaning of "employee" in the context of the agreement's retrospective application, as well as the implications of the agreement's provisions on existing workers' entitlements.

The Fair Work Commission found that the agreement was likely to provide BOOT for the employees, despite some concerns about the retrospective application. The Commission considered the overall fairness of the agreement, including the benefits it provided to employees such as pay rates, conditions, and the resolution of existing disputes. The Commission also concluded that the agreement's definition of "employee" was sufficiently clear to apply to workers employed prior to the agreement's effective date. After balancing the interests of both parties, the Commission determined that the agreement met the criteria for approval under the Fair Work Act 2009.

Consequently, the Commission approved the Blacktop Materials Engineering Roy Hill AWU Greenfields Agreement 2013, effective from the date of the Commission's decision. The approval was subject to certain conditions, including the requirement that the agreement be communicated to all affected employees and that the parties cooperate in implementing the agreement. The decision provided clarity on the application of the agreement to existing employees and set a precedent for similar agreements in the future.

Blacktop Materials Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established