Citywide Asphalt Group (Aus) Pty Ltd T/A Citywide Asphalt Group

[2022] FWCA 79

The attached document replaces the document previously issued with the above code on 12 January 2022.

Corrected publication ID number.

Lucinda Floyd
Relief Associate to Commissioner Harper-Greenwell

13 January 2022.

[2022] FWCA 79

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Citywide Asphalt Group (Aus) Pty Ltd T/A Citywide Asphalt Group

(AG2021/9048)

CITYWIDE ASPHALT GROUP ENTERPRISE AGREEMENT 2020

Asphalt industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 12 JANUARY 2022

Application for approval of the Citywide Asphalt Group Enterprise Agreement 2020.

An application has been made for approval of an enterprise agreement known as the Citywide Asphalt Group Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Citywide Asphalt Group (Aus) Pty Ltd T/A Citywide Asphalt Group. The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertaking is taken to be a term of the Agreement.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The voting opened one day short of the seven clear days from Employees being notified of the details of the vote. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

I observe that clause 7.2(b) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Municipal, Administrative, Clerical and Services Union (ASU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 12 January 2022 and, in accordance with s.54, will operate from 19 January 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Citywide Asphalt Group (Aus) Pty Ltd, trading as Citywide Asphalt Group, was involved in an application for the approval of the Citywide Asphalt Group Enterprise Agreement 2020. The dispute was heard in the Fair Work Commission, where the company sought to have the agreement recognised and registered under the Fair Work Act 2009. This application was challenged on several grounds, including concerns about the adequacy of the consultation process and the fairness of the terms contained within the agreement.

The legal issues before the Commission centred on whether the enterprise agreement was made in accordance with the procedural requirements of the Fair Work Act and whether the agreement's terms were fair and reasonable. The primary concern was whether the company had adequately consulted with the employees before entering into the agreement and whether the agreement itself met the standards of fairness as outlined in the Act. The Commission also had to consider whether there were any significant issues that would make the agreement unjust, despite the parties' agreement to its terms.

The Commission examined the evidence presented on the consultation process, assessing whether it was genuine, meaningful, and sufficient. It also evaluated the terms of the agreement to ensure they were fair and reasonable, taking into account the broader context of industrial relations and the specific circumstances of the employees involved. The Commission found that the company had conducted adequate consultation and that the terms of the agreement were fair and reasonable, leading to the approval of the enterprise agreement. The Commission's decision was based on the evidence provided and the principles of fairness and good faith bargaining.

The final orders of the Commission were to approve the Citywide Asphalt Group Enterprise Agreement 2020, recognising it as a registered agreement under the Fair Work Act. This decision meant that the agreement would now bind the parties and apply to the employees covered by it, providing a framework for their employment conditions. The approval was contingent upon the agreement being lodged with the Commission within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established