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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CaseChat Overview and Summary

In the Fair Work Commission, R.A.B.S Paving Services Pty Ltd applied for a variation to the Australian Workers' Union Victoria Asphalt Agreement 2017 to 2020. The applicant, a paving contractor, sought changes to the agreement to reflect changes in the industry and the company's operational context. The respondent, the Australian Workers' Union, opposed the application on the grounds that the proposed changes were not warranted and would adversely affect the employees.

The primary legal issues before the Commission were whether the applicant had demonstrated that there had been a change in circumstances warranting a variation of the agreement and whether such a variation was in the interests of the employees and the employer. The Commission had to consider the evidence presented by both parties regarding the changes in the industry, the financial viability of the company, and the impact of the proposed changes on the employees.

The Commission determined that the applicant had not demonstrated a sufficient change in circumstances to warrant a variation of the agreement. It found that while there had been changes in the industry, these changes did not necessarily impact the terms and conditions of the agreement in a way that would justify a variation. Furthermore, the Commission was not satisfied that the proposed changes were in the interests of the employees, as the applicant had not provided sufficient evidence to support its claims. The application for variation was dismissed.

As a result of the decision, the Australian Workers' Union Victoria Asphalt Agreement 2017 to 2020 remains in effect, and the parties are bound by its terms until the next scheduled review or until a successful application for variation is made. The Commission emphasised the importance of demonstrating a significant change in circumstances and the need for evidence to support any claims made in such applications.

R.A.B.S Paving Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established