Bulla Spoils Facility Pty Ltd T/A Bulla Spoils Facility Pty Ltd Summary

[2022] FWCA 1276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bulla Spoils Facility Pty Ltd T/A Bulla Spoils Facility Pty Ltd

(AG2022/771)

Bulla Spoils Facility Pty Ltd Enterprise Agreement Westgate Tunnel Project

Waste management industry
COMMISSIONER MIRABELLA	MELBOURNE, 12 APRIL 2022

Application for the approval of Bulla Spoils Facility Pty Ltd Enterprise Agreement Westgate Tunnel Project.

Bulla Spoils Facility Pty Ltd T/A Bulla Spoils Facility Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Bulla Spoils Facility Pty Ltd Enterprise Agreement Westgate Tunnel Project (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

Clause 12.5 – Notice of termination (abandonment of employment)

Clause 30.2 – Public holiday

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 12 April 2022 and, in accordance with s.54, will operate from 19 April 2022. The nominal expiry date of the Agreement is 12 April 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bulla Spoils Facility Pty Ltd, trading as Bulla Spoils Facility, applied for the approval of an enterprise agreement for the Westgate Tunnel Project. The dispute was heard in the Fair Work Commission. The primary legal issue was whether the enterprise agreement complied with the Fair Work Act 2009 and its regulations. Specifically, the Commission needed to determine if the agreement provided adequate protection for the employees’ rights and met the statutory requirements for approval.

The Fair Work Commission examined various aspects of the enterprise agreement, including its coverage, the negotiation process, and its compliance with the relevant legislative provisions. The Commission also considered the balance between the interests of the employer and the employees, ensuring that the agreement did not undermine the employees' rights or provide unfair advantages to the employer. The Commission assessed whether the agreement included appropriate provisions for minimum entitlements, dispute resolution, and other essential elements as required by the Fair Work Act.

After careful consideration, the Commission determined that the enterprise agreement did comply with the Fair Work Act and its regulations. The agreement provided sufficient protection for the employees' rights and met all statutory requirements for approval. The Commission approved the enterprise agreement, highlighting the importance of balancing the interests of both parties while ensuring that the agreement adhered to the legislative framework.

The Fair Work Commission ordered the approval of the enterprise agreement, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions for the employees involved in the Westgate Tunnel Project.

Bulla Spoils Facility Pty Ltd T/A Bulla Spoils Facility Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established