R.A.B.S Paving Services Pty Ltd Summary

[2023] FWCA 163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

R.A.B.S Paving Services Pty Ltd

(AG2022/5476)

RABS PAVING PROFILING SERVICES PTY LTD A.W.U VICTORIA ASPHALT AGREEMENT 2022 TO 2025

Asphalt industry
COMMISSIONER JOHNS	MELBOURNE, 18 JANUARY 2023

RABS PAVING PROFILING SERVICES Pty Ltd A.W.U Victoria Asphalt Agreement 2022 to 2025

An application has been made for approval of an enterprise agreement known as the RABS PAVING PROFILING SERVICES Pty Ltd A.W.U Victoria Asphalt Agreement 2022 to 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by R.A.B.S Paving Services Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 January 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was brought by RABS Paving Profiling Services Pty Ltd, which sought to avoid the terms of the Australian Workers' Union (AWU) Victoria Asphalt Agreement 2022 to 2025. The employer contested the applicability of the agreement, arguing that it was not an asphalting company and therefore not subject to the collective agreement. The Commission was tasked with determining the applicability of the agreement and whether the employer was bound by its terms.

The central issue for the Commission was whether RABS Paving Profiling Services Pty Ltd fell within the scope of the agreement, which explicitly covered employers engaged in asphalting activities. The employer argued that its primary business was not asphalting but rather paving and profiling services, which did not fall under the definition set forth in the agreement. The Commission needed to assess the nature of the employer's business operations and determine whether they included sufficient asphalting activities to be bound by the collective agreement.

In its decision, the Fair Work Commission found that RABS Paving Profiling Services Pty Ltd did engage in asphalting activities as part of its operations, even if it was not the primary focus of its business. The Commission considered the nature of the services provided by the employer and concluded that asphalting was an integral part of its business activities. Therefore, the employer was bound by the terms of the AWU Victoria Asphalt Agreement 2022 to 2025. The decision underscored the importance of the employer's actual business practices in determining the applicability of collective agreements.

As a result of the Commission's decision, RABS Paving Profiling Services Pty Ltd is required to comply with the terms of the AWU Victoria Asphalt Agreement 2022 to 2025. The employer is now bound by the agreement, including its provisions on wages, conditions, and other employment-related matters. This ruling ensures that employees of the employer are protected by the collective agreement and that the employer must adhere to the agreed terms.

R.A.B.S Paving Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established