Asphalt Labour Hire Pty Ltd t/a Roadsafe Asphalt

[2021] FWCA 3182

[2021] FWCA 3182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Asphalt Labour Hire Pty Ltd t/a Roadsafe Asphalt
(AG2021/5039)

ROADSAFE ASPHALT ENTERPRISE AGREEMENT (ASPHALTERS) 2021

Asphalt industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 3 JUNE 2021

Application for approval of the Roadsafe Asphalt Enterprise Agreement (Asphalters) 2021.

[1] Roadsafe Asphalt has applied for approval of a single enterprise agreement known as the Roadsafe Asphalt Enterprise Agreement (Asphalters) 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Roadsafe Asphalt sought to correct a typographical error in the original application, by filing an amended application and statutory declaration. In the circumstances, I am satisfied that these amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[5] Noting clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[8] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[9] The Agreement was approved on 3 June 2021 and, in accordance with s.54, will operate from 10 June 2021. The nominal expiry date of the Agreement is 3 June 2024.

[10] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE511702  PR730407>

Annexure A

 1   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.