Inroads Pty Ltd T/A Inroads; Primal Surfacing Pty Ltd; Western Quarries Pty Ltd

[2019] FWCA 8494

[2019] FWCA 8494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Inroads Pty Ltd T/A Inroads; Primal Surfacing Pty Ltd; Western Quarries Pty Ltd
(AG2019/4429)

VSA ROADS ENTERPRISE AGREEMENT 2019

Asphalt industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 23 DECEMBER 2019

Application for approval of the VSA Roads Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the VSA Roads Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Inroads Pty Ltd T/A Inroads; Primal Surfacing Pty Ltd; Western Quarries Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The notification time for the Agreement was 2 September 2019. Sections 173(1) and (3) of the Act require an employer take all reasonable steps to give notice of the right to be represented by a bargaining representative (Notice) as soon as practicable, and not later than 14 days after the notification time for the Agreement. In this case, the Employer did not provide a copy of the Notice to a casual employee within 14 days of 2 September 2019. The employee was absent from work due to travel. However, the Employer handed a copy of the Notice to the casual employee immediately upon their return to work on 1 October 2019. That same day, the casual employee appointed a bargaining representative.

[3] Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 and the submissions of the Employer, 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 circumstance I am satisfied that the casual employee was not likely to have been disadvantaged by the error (s.188(2)(b)). As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[4] 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.

[5] Subject to 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. The undertakings are taken to be terms of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

•  Clause 11.8(c) of the Agreement, which states that the Employer, at its discretion, may withhold the cost of training from any monies owing to an employee if the employee’s employment is terminated within 12 months of completion of training; and

•  Clause 13.1(a) and (b) of the Agreement, which provides that the ordinary hours of work for full-time employees are an average of 40 hours per week, and less than an average of 40 hours per week for non-full-time employees.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 December 2019. The nominal expiry date of the Agreement is 30 December 2022.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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