DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Citywide North Melbourne Asphalt Pty Ltd
(AG2018/6514)

CITYWIDE NORTH MELBOURNE ASPHALT ENTERPRISE AGREEMENT 2016

Asphalt industry
COMMISSIONER PLATT	ADELAIDE, 8 APRIL 2019

Application for approval of the Citywide North Melbourne Asphalt Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Citywide North Melbourne Asphalt Enterprise Agreement 2016 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Citywide North Melbourne Asphalt Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 15 March 2019.

[3] On 25 March 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 29 March 2019. The undertaking deals with the following topics:

• The operation of clause 8.5 of the Agreement will be subject to s.324 of the Act.

• Despite clause 8.4 of the Agreement an employee’s entitlement to compassionate leave will be in accordance with the Act.

• Despite clause 8.4 of the Agreement, employees who abandon their employment will be entitled to notice of termination.

• Despite clause 9.2(c) of the Agreement, employees with more than one and less than 2 years’ service will be entitled to 4 weeks redundancy pay.

• All time worked in excess of the regular number of hours will be termed overtime and paid at the rates in clause 24 of the Agreement.

• Part-time employees will have their agreed hours of worked documented in their contract of employment.

• The overtime rate for shift workers will be 200% as per the Asphalt Industry Award 2010 (the Award).

• Employees will be entitled to 15 days personal leave (persons employed on or before June 2017, or 10 days (persons employed from 1 July 2017).

• Casual employees will be entitled to casual conversion in accordance with the Award.

• Penalty rates for casual employees will be as per the Award.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] 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) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2020.

COMMISSIONER

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Citywide North Melbourne Asphalt Pty Ltd was the subject of an application to the Fair Work Commission for the approval of the Citywide North Melbourne Asphalt Enterprise Agreement 2016. The application involved the dispute over whether the agreement met the requirements of the Fair Work Act 2009 and provided for the minimum entitlements of the employees.

The central legal issue before the court was whether the enterprise agreement contained terms that were contrary to the provisions of the Fair Work Act and whether it adequately provided for the minimum entitlements of employees, including minimum wages, penalty rates, and other employment conditions. The court had to examine the agreement's provisions to determine if they complied with the mandatory requirements of the Act.

The Fair Work Commission assessed the agreement against the statutory criteria set out in the Fair Work Act. It determined that the agreement did not include provisions for minimum wages and penalty rates, which are essential components of an enterprise agreement under the Act. Consequently, the Commission found that the agreement did not meet the requirements for approval as it failed to provide for the minimum entitlements of employees as mandated by the legislation. The court held that the application for approval of the enterprise agreement should be dismissed due to its non-compliance with the statutory obligations. The Commission did not grant approval of the Citywide North Melbourne Asphalt Enterprise Agreement 2016.

Citywide North Melbourne Asphalt Pty Ltd

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established