R.A.B.S Paving Services Pty Ltd

[2020] FWCA 5454

[2020] FWCA 5454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

R.A.B.S Paving Services Pty Ltd
(AG2020/2692)

R.A.B.S PAVING SERVICES PTY LTD A.W.U VICTORIA ASPHALT AGREEMENT 2017 TO 2020

Asphalt industry
COMMISSIONER LEE	MELBOURNE, 14 OCTOBER 2020

Application for variation of the R.A.B.S Paving Services Pty Ltd A.W.U Victoria Asphalt Agreement 2017 to 2020.

[1] An application has been made for approval of a variation to the R.A.B.S Paving Services Pty Ltd A.W.U Victoria Asphalt Agreement 2017 to 2020 (the Agreement). The application was made by R.A.B.S Paving Services Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 5 December 2018. Those undertakings form part of the Agreement as varied.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 8.c – Casual Employment

•  Clause 12 – Termination of Employment

•  Clause 14 – Abandonment of Employment

•  Clause 40 – Annual Leave

•  Clause 42 – Compassionate Leave

•  Clause 43 – Carer’s Leave

•  Clause 48 – Public Holidays

However, noting clause 5 of the Varied Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[9] In accordance with s.216 of the Act, the variation operates from 14 October 2020.

COMMISSIONER

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