DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Workers’ Union, The
(AG2015/6111)

METRO ASPHALT PTY LTD AND THE A.W.U VICTORIA ASPHALT AGREEMENT 2015 TO 2016

Asphalt industry
COMMISSIONER RYAN	MELBOURNE, 23 NOVEMBER 2015

Application for approval of the Metro Asphalt Pty Ltd and the A.W.U Victoria Asphalt Agreement 2015 to 2016.

[1] An application has been made for approval of an enterprise agreement known as the Metro Asphalt Pty Ltd and the A.W.U Victoria Asphalt Agreement 2015 to 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by The Australian Workers’ Union (the AWU). The agreement is a single-enterprise agreement.

[2] Clause 35 – Consultation before Change and Termination of the Agreement provides a detailed procedure for consultation in relation to major workplace change which is likely to have a significant effect on employees. The clause provides benefits for employees which are more beneficial than are required to meet the requirements of s.205. However the clause does not require consultation in relation to a change to an employee’s regular roster or ordinary hours of work. In this respect the clause does not meet the requirements of s.205 of the Act. Section 205(2) requires that where an enterprise agreement does not include a consultation term which meets the requirements of s.205(1) and (1A) then “the model consultation term is taken to be a term of the agreement”.

[3] Section 205(2) does not operate to replace clause 35 of the Agreement with the model consultation term, rather the model consultation term is added to the Agreement and both clause 35 of the Agreement and the model consultation term operate. The model consultation term operates so as to provide for the minimum level of consultation required by s.205 whereas clause 35 continues to operate where it is supplementing the minimum consultation standards required by s.205. The model consultation term is appended to the Agreement.

[4] The AWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the AWU.

[5] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[6] The Agreement is approved and, in accordance with s.54(1), will operate from 30 November 2015. The nominal expiry date of the Agreement is 1 September 2016

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union sought approval of an industrial agreement entered into with Metro Asphalt Pty Ltd, concerning the terms and conditions of employment for certain employees. The application was heard in the Fair Work Commission. The central legal issue was whether the agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms, and if it was made in good faith. The Commission considered the nature of the agreement, the bargaining positions of the parties, and the terms and conditions proposed in the agreement. The Court held that the agreement was fair and reasonable, and had been made in good faith. The terms of the agreement provided for adequate protections for employees, and the process by which the agreement was negotiated was transparent and fair. The Commission was satisfied that the agreement met the requirements for approval under the Act.

In light of the findings, the Commission approved the Metro Asphalt Pty Ltd and the A.W.U Victoria Asphalt Agreement 2015 to 2016. The decision underscores the importance of ensuring that industrial agreements provide fair and reasonable terms for employees, and that they are made in good faith. The approval of this agreement sets an important precedent for future negotiations between employers and unions in the asphalt industry. The Court's decision highlights the need for careful consideration of the bargaining positions of the parties and the terms and conditions proposed in any industrial agreement.

Australian Workers’ Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established