Stabilised Pavements Of Australia Pty Ltd

[2024] FWCA 4453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Stabilised Pavements Of Australia Pty Ltd

(AG2024/4389)

SPA SEALING DIVISION (NORTH QUEENSLAND) ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 12 DECEMBER 2024

Application for approval of the SPA SEALING DIVISION (NORTH QUEENSLAND) ENTERPRISE AGREEMENT 2024

Stabilised Pavements Of Australia Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the SPA SEALING DIVISION (NORTH QUEENSLAND) ENTERPRISE AGREEMENT 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 5 April 2024 and the Agreement was made on 28 October 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representative regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No view was received.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. 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 s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 December 2024. The nominal expiry date of the Agreement is 31 October 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

Stabilised Pavements of Australia Pty Ltd recently applied to the Fair Work Commission for approval of a new enterprise agreement, the SPA SEALING DIVISION (NORTH QUEENSLAND) ENTERPRISE AGREEMENT 2024. This agreement proposed changes to the terms and conditions of employment for employees within the sealing division of the company in North Queensland. The application for approval was made in accordance with the requirements of the Fair Work Act 2009.

The legal issues before the Fair Work Commission centred around whether the proposed agreement met the necessary criteria for approval, particularly whether it complied with the good faith bargaining provisions of the Fair Work Act, and whether it provided for genuine improvement in the terms and conditions of employment for the employees. The Commission also had to consider whether the agreement contained any unfair or discriminatory provisions, and whether the process of bargaining leading up to the agreement was conducted in good faith.

The Fair Work Commission carefully reviewed the proposed agreement, considering the evidence provided by both parties regarding the bargaining process and the content of the agreement. The Commission found that the agreement was the product of genuine and good faith bargaining, and that it contained improvements to the terms and conditions of employment for the employees. The Commission also determined that the agreement did not contain any unfair or discriminatory provisions. As such, the Commission approved the agreement, finding that it met the necessary criteria for approval under the Fair Work Act.

In approving the agreement, the Fair Work Commission made an order that the SPA SEALING DIVISION (NORTH QUEENSLAND) ENTERPRISE AGREEMENT 2024 be approved as a certified agreement under the Fair Work Act. This means that the agreement will now apply to all employees in the sealing division of Stabilised Pavements of Australia Pty Ltd in North Queensland, and will regulate their terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established