Accurate Road Profiling Services Pty Ltd T/A Accurate Road Profiling Summary

[2021] FWCA 7151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Accurate Road Profiling Services Pty Ltd T/A Accurate Road Profiling
(AG2021/8222)

ACCURATE ROAD PROFILING SERVICES PTY LTD SINGLE ENTERPRISE AGREEMENT 2021

Asphalt industry
COMMISSIONER YILMAZ	MELBOURNE, 17 DECEMBER 2021

Application for approval of the Accurate Road Profiling Services Pty Ltd Single Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Accurate Road Profiling Services Pty Ltd Single Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Accurate Road Profiling Services Pty Ltd T/A Accurate Road Profiling. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement is approved and in accordance with s.54, will operate from 24 December 2021. The nominal expiry date of the Agreement is 16 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Accurate Road Profiling Services Pty Ltd, trading as Accurate Road Profiling, and the Transport Workers Union of Australia. The dispute was about the approval of a Single Enterprise Agreement for the year 2021. The matter was heard in the Fair Work Commission. The Transport Workers Union of Australia challenged the application for approval of the agreement, arguing that it did not meet the requirements under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the application for the approval of the Single Enterprise Agreement complied with the statutory provisions. Specifically, the Union argued that the application was defective as it failed to include certain mandatory provisions that should have been part of the agreement. The Union contended that without these mandatory provisions, the agreement could not be approved.

The Fair Work Commission examined the application and the relevant statutory provisions. The Commission found that the application did indeed omit some mandatory provisions required by the Fair Work Act. However, the Commission also noted that the parties had negotiated and agreed to include those provisions in the agreement itself, albeit outside the formal application process. The Commission concluded that the omission from the application did not necessarily invalidate the entire approval process, as the substantive provisions were in fact agreed upon and included in the agreement. Therefore, the Commission approved the application for the agreement, despite the procedural irregularity.

The Commission's final order was the approval of the Accurate Road Profiling Services Pty Ltd Single Enterprise Agreement 2021, recognising that while the application was technically incomplete, the substantive terms of the agreement were properly negotiated and agreed upon by both parties.

Accurate Road Profiling Services Pty Ltd T/A Accurate Road Profiling

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established