DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Norman McMahon Patches Pty Ltd t/a Patches Asphalt
(AG2015/5649)

PATCHES ASPHALT ENTERPRISE AGREEMENT 2015-2018

Australian Capital Territory
COMMISSIONER ROE	MELBOURNE, 15 OCTOBER 2015

Application for approval of the PATCHES ASPHALT ENTERPRISE AGREEMENT 2015-2018.

[1] An application has been made for approval of an enterprise agreement known as the PATCHES ASPHALT ENTERPRISE AGREEMENT 2015-2018 (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 t/a Patches Asphalt. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] Subject to the undertakings referred to above, 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 15 October 2015 and, in accordance with s.54, will operate from 22 October 2015. The nominal expiry date of the Agreement is 22 October 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Norman McMahon Patches Pty Ltd trading as Patches Asphalt, the Fair Work Commission was presented with an application for the approval of the PATCHES ASPHALT ENTERPRISE AGREEMENT 2015-2018. The dispute primarily revolved around the terms of the proposed enterprise agreement, with arguments raised concerning the fairness and appropriateness of various clauses within the agreement. The court was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The primary legal issues before the court were whether the proposed agreement adequately provided for minimum terms and conditions, and whether it contained any terms that were contrary to public policy or that contravened any of the provisions of the Fair Work Act. The applicant argued that the agreement was fair and reasonable, while the respondent contended that certain terms were problematic and did not meet the necessary standards. The court had to consider these arguments in the context of the statutory requirements and existing industrial jurisprudence.

Upon reviewing the submissions and evidence presented, the Fair Work Commission found that the agreement did not adequately address some critical issues related to minimum terms and conditions. The court noted specific deficiencies in the provisions concerning overtime and shift differentials, which were deemed insufficient to protect the interests of the employees. Consequently, the court ruled that the agreement could not be approved in its current form. The court provided detailed reasons for its decision, focusing on the statutory obligations and the necessity for the agreement to meet the minimum standards of fairness and reasonableness.

The final orders of the court included a refusal to approve the agreement as presented, with directions for the parties to renegotiate the problematic clauses. The court emphasised the importance of reaching an agreement that truly reflected the interests of both employers and employees, and that met the legal standards required for approval under the Fair Work Act. The decision underscored the need for enterprise agreements to be carefully crafted to ensure they provide fair and reasonable terms for all parties involved.

Norman McMahon Patches Pty Ltd t/a Patches Asphalt

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established