Stabilised Pavements of Australia Pty Ltd T/A Stabilised Pavements of Australia Pty Ltd

[2022] FWCA 1522

[2022] FWCA 1522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Stabilised Pavements of Australia Pty Ltd T/A Stabilised Pavements of Australia Pty Ltd

(AG2022/1235)

STABILISED PAVEMENTS OF AUSTRALIA ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER O'NEILL	MELBOURNE, 9 MAY 2022

Application for approval of the STABILISED PAVEMENTS OF AUSTRALIA ENTERPRISE AGREEMENT 2021

1. Stabilised Pavements of Australia Pty Ltd has applied for approval of an enterprise agreement known as the STABILISED PAVEMENTS OF AUSTRALIA ENTERPRISE AGREEMENT 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. Employees were provided with a copy of the proposed Agreement and details of the vote one day after the access period commenced. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of ss.180(2) and (3) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

1. 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.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 21 – Public Holidays;

·           Clause 22.4 – Annual Leave; and

·           Clause 31.5 – Termination by the Employee.

However, noting the undertaking given by the Employer, 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 16 May 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A