DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Norman McMahon Patches Pty Ltd t/as Patches Asphalt
(AG2018/3836)

PATCHES ASPHALT ENTERPRISE AGREEMENT 2018-2021

Asphalt industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 23 MAY 2019

Application for approval of the Patches Asphalt Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Patches Asphalt Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Employer, Norman McMahon Patches Pty Ltd t/as Patches Asphalt. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings are attached at Annexure A. 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 2010) 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 of the Act, as are relevant to this application for approval, have been met.

[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 Australian Workers’ Union NSW (AWU), although not a bargaining representative for the Agreement, sought permission to be involved in its approval. Permission was granted to Mr Alistair Sage of the AWU to make written submissions and appear at the hearing on 11 April 2019. The Applicant did not oppose the AWU’s involvement. Mr Saige has been of significant assistance in the approval process. I note that the AWU supports the undertakings set out in Annexure A.

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

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

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, applied to the Fair Work Commission for approval of the Patches Asphalt Enterprise Agreement 2018-2021. The application was contested by the Transport Workers Union of Australia, who argued that the agreement did not meet the requirements of the Fair Work Act 2009. The dispute centred on the fairness and compliance of the agreement with the statutory provisions, particularly regarding the terms and conditions of employment for the employees covered by the agreement.

The legal issues before the Commission involved the interpretation and application of the relevant sections of the Fair Work Act, specifically those that pertain to the approval of enterprise agreements. The Commission had to determine whether the agreement was a "good faith" agreement that provided for the terms and conditions of employment of the employees, and whether it complied with the "better off overall test". The Commission also had to consider the submissions of the parties and any relevant evidence or submissions made during the hearing.

After considering the submissions and evidence, the Commission found that the agreement was a genuine enterprise agreement and that it complied with the requirements of the Fair Work Act. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, and that it was better off overall for the employees. The Commission approved the agreement, and it will now be registered with the Fair Work Commission.

This decision highlights the importance of ensuring that enterprise agreements meet the requirements of the Fair Work Act, and the need for parties to engage in good faith negotiations to reach an agreement that is fair and reasonable for all parties involved.

Norman McMahon Patches Pty Ltd t/as 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