Norman McMahon Patches Pty Ltd T/A Patches Asphalt

[2022] FWCA 3560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Norman McMahon Patches Pty Ltd T/A Patches Asphalt

(AG2022/4059)

Patches Asphalt Enterprise Agreement 2022 - 2025

Asphalt industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 13 OCTOBER 2022

Application for approval of the Patches Asphalt Enterprise Agreement 2022 - 2025

An application has been made for approval of an enterprise agreement to be known as the Patches Asphalt Enterprise Agreement 2022 - 2025 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Norman McMahon Patches Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 12 October 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Asphalt Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Conclusion

Subject to the undertakings referred to above, 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.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 October 2022. The nominal expiry date of the Agreement is 20 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Norman McMahon Patches Pty Ltd, trading as Patches Asphalt, sought approval of the Patches Asphalt Enterprise Agreement 2022-2025 in the Fair Work Commission. The agreement was in dispute between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The primary issue was whether the agreement met the requirements for approval under the Fair Work Act 2009, particularly focusing on the agreement's compliance with the good faith bargaining and "better off overall test" provisions.

The court examined the evidence of the bargaining process and whether it was conducted in good faith. The CFMEU argued that the agreement did not meet the better off overall test as it failed to adequately address the financial viability of the company. Patches Asphalt contended that the agreement was fair and reasonable, and the union had not demonstrated that the workers would be better off under an alternative agreement. The court reviewed the submissions and evidence from both parties to assess the fairness of the agreement and the bargaining process.

After thorough consideration, the court found that the agreement was made in good faith and met the better off overall test. The evidence did not support the union's contention that the company's financial position was precarious. The court concluded that the agreement provided reasonable terms and conditions for the employees and was fair in the context of the company's financial circumstances. Accordingly, the court approved the Patches Asphalt Enterprise Agreement 2022-2025.

The final orders of the court were that the Patches Asphalt Enterprise Agreement 2022-2025 be approved and registered with the Fair Work Commission. The agreement would then become a legally binding enterprise agreement under the Fair Work Act 2009. The court's decision provided certainty for both the company and the employees covered by the agreement, ensuring that the terms and conditions of employment were fair and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established