The Australian Workers’ Union

[2013] FWCA 329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Australian Workers’ Union
(AG2012/13145)

PRIMAL SURFACING PTY LTD, A.W.U VICTORIA ASPHALT AGREEMENT 2012 TO 2013

Asphalt industry
COMMISSIONER RYAN	MELBOURNE, 15 JANUARY 2013

Application for approval of the Primal Surfacing Pty Ltd, A.W.U Victoria Asphalt Agreement 2012 to 2013.

[1] An application has been made for approval of an enterprise agreement known as the Primal Surfacing Pty Ltd, A.W.U Victoria Asphalt Agreement 2012 to 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by The Australian Workers’ Union (AWU). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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. As required by s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54(1), will operate from 22 January 2013. The nominal expiry date of the Agreement is 30 September 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union applied to the Fair Work Commission for approval of the Primal Surfacing Pty Ltd, A.W.U Victoria Asphalt Agreement 2012 to 2013. The application was made by the Union under section 186(2)(b) of the Fair Work Act 2009. Primal Surfacing Pty Ltd contested the application, contending that the agreement did not meet the requirements for approval under the Act. The Fair Work Commission was required to determine whether the agreement was in the best interests of the employees covered by it and whether it met the criteria for approval under the legislation.

In reaching its decision, the Commission considered the terms of the agreement, the nature of the industry, the bargaining power of the parties, and the interests of the employees. The Commission found that the agreement was in the best interests of the employees, as it provided for a fair and reasonable outcome for them, taking into account the economic climate and the bargaining power of the parties. The Commission also found that the agreement met the criteria for approval under the Act, including that it provided for the establishment of a fair and effective dispute resolution procedure.

The Commission approved the agreement, subject to certain modifications to ensure that it complied with the Act. The modifications related to the dispute resolution procedure and the calculation of penalty rates for Sunday work. The Union and Primal Surfacing Pty Ltd were directed to implement the modified agreement within 28 days of the decision. The decision of the Fair Work Commission was based on a careful consideration of the evidence and the relevant legal principles, and provides guidance for future applications for approval of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established