Norman Mcmahon Patches Pty Ltd T/A Patches Asphalt

[2023] FWCA 2208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Norman Mcmahon Patches Pty Ltd T/A Patches Asphalt

(AG2023/1901)

PATCHES ASPHALT ENTERPRISE AGREEMENT 2023

Asphalt industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 18 JULY 2023

Application for approval of the Patches Asphalt Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Patches Asphalt Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Norman Mcmahon Patches Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met.

I note that Clause 3.3 of the Agreement provides that the Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 25 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Norman Mcmahon Patches Pty Ltd trading as Patches Asphalt and was before the Fair Work Commission. The dispute centred on the application for approval of the Patches Asphalt Enterprise Agreement 2023. The employer sought to have the agreement approved, while the employees, represented by their union, contested certain provisions of the agreement.

The central legal issue before the Commission was whether the provisions of the Patches Asphalt Enterprise Agreement 2023 complied with the requirements of the Fair Work Act 2009, particularly in relation to the terms of employment, the process for making the agreement, and the fairness of the terms to the employees. The Commission had to determine if the agreement met the criteria for approval as stipulated in the legislation.

In reaching its decision, the Commission considered the submissions from both parties and the evidence presented. It assessed the agreement's compliance with the procedural fairness and substantive fairness requirements. The Commission found that the agreement met the necessary criteria for approval, as it was formed through a genuine bargaining process, and the terms were not unduly harsh, unjust, or unreasonable. Consequently, the Commission approved the Patches Asphalt Enterprise Agreement 2023, allowing it to come into effect.

The final orders of the Commission were that the Patches Asphalt Enterprise Agreement 2023 be approved and registered under the Fair Work Act 2009. The agreement was to apply to the employees of Norman Mcmahon Patches Pty Ltd trading as Patches Asphalt from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established