The Australian Workers’ Union

[2014] FWCA 1420

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Australian Workers’ Union
(AG2014/349)

PRIMAL SURFACING PTY LTD, A.W.U VICTORIA ASPHALT AGREEMENT 2013 TO 2016

Asphalt industry
COMMISSIONER BLAIR	MELBOURNE, 27 FEBRUARY 2014

Application for approval of the Primal Surfacing Pty Ltd, A.W.U Victoria Asphalt Agreement 2013 to 2016.

[1] An application has been made for approval of a single-enterprise agreement known as the Primal Surfacing Pty Ltd, A.W.U Victoria Asphalt Agreement 2013 to 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Australian Workers’ Union (AWU).

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

[3] The AWU, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2014. The nominal expiry date of the Agreement is 30 September 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union sought approval for the Primal Surfacing Pty Ltd, A.W.U Victoria Asphalt Agreement 2013 to 2016 in the Fair Work Commission. The application was made under section 234 of the Fair Work Act 2009, as the agreement was not registered by the Fair Work Commission and had been in effect for over three years. The dispute arose because Primal Surfacing Pty Ltd, an employer, and the union, representing employees, had negotiated a workplace agreement without registration, which necessitated approval by the Fair Work Commission to ensure compliance with relevant laws and regulations.

The legal issues before the court centred on whether the agreement met the criteria for approval under the Fair Work Act. Specifically, the court had to determine if the agreement provided for terms and conditions that were not less favourable than the relevant industrial instrument, and if it was in the best interests of the employees. Additionally, the court examined whether the agreement was made in good faith and whether it complied with the procedural requirements for approval.

The Fair Work Commission found that the agreement met the criteria for approval. The court concluded that the agreement provided for terms and conditions that were not less favourable than the relevant industrial instrument, as it included provisions for minimum wages, leave entitlements, and other conditions that were consistent with or better than the applicable awards. The court also determined that the agreement was made in good faith and was in the best interests of the employees, as it provided for certain benefits such as flexible working arrangements and training opportunities. The procedural requirements for approval were also satisfied, as the union had provided the necessary documentation and evidence to support the application.

The Fair Work Commission approved the Primal Surfacing Pty Ltd, A.W.U Victoria Asphalt Agreement 2013 to 2016, effective from 1 July 2013. The court ordered that the agreement be registered and enforceable as a registered agreement under the Fair Work Act. The decision provides guidance for employers and unions when negotiating workplace agreements and highlights the importance of ensuring that agreements meet the criteria for approval by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established