Top Coat Asphalt Contractors Pty Ltd T/A Topcoat Asphalt

[2025] FWCA 739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Top Coat Asphalt Contractors Pty Ltd T/A Topcoat Asphalt

(AG2024/4713)

TOPCOAT ASPHALT ENTERPRISE AGREEMENT 2024

Asphalt industry

COMMISSIONER THORNTON

ADELAIDE, 25 FEBRUARY 2025

Application for approval of the Topcoat Asphalt Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Topcoat Asphalt Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Top Coat Asphalt Contractors Pty Ltd trading as Topcoat Asphalt (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) provided to the employees was not in the prescribed form. It is in the form as prescribed prior to 6 June 2023. I am satisfied that the Agreement would have been genuinely agreed to but for the slight departure from the NERR requirements in s. 174(1)(A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act and exercise the discretion conferred by section 188(5) of the Act to disregard the minor technical error.

The copy of the Agreement filed with the application for approval contained errors in the table containing rates of pay in clause 12.1(c) in addition to referencing errors. Amendments to the rates of pay table reflect increased rates of pay that the Applicant submits were negotiated in the bargaining process. The Applicant has requested the Commission allow the corrections. An amended copy of the Agreement was filed with the Commission. I consider it appropriate in the circumstances to allow the corrections pursuant to s.586(a) of the Act.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Pursuant to sections 193A(6) and (6A) of the Act, I have had regard to the submissions of the Employer that patterns of work for shiftworkers undertaking afternoon shift that would otherwise attract a penalty under the Award but not the Agreement are not reasonably foreseeable. I accept the submissions of the Employer. For completeness I note the terms of section 227A of the Act that allows the Commission, in certain circumstances, to reconsider whether the Agreement passes the better off overall test if there are changes to the patterns of work at a later time.

The Agreement is approved and will operate in accordance with s.54 of the Act from 4 March 2025. The nominal expiry date of the Agreement is 4 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Top Coat Asphalt Contractors Pty Ltd, trading as Topcoat Asphalt, applied for the approval of the Topcoat Asphalt Enterprise Agreement 2024 under section 185 of the Fair Work Act 2009. The application was heard by Commissioner Thornton at the Fair Work Commission. The Agreement in question was a single enterprise agreement concerning the asphalt industry. The primary issue before the Commission was whether the Agreement had been genuinely agreed to by the parties, despite certain procedural errors in the Notice of Employee Representational Rights and the rates of pay table. Additionally, the Commission had to consider whether the Agreement met the requirements of sections 186, 187, and 188 of the Act, particularly in light of the employer's undertakings and the potential impact on employees' financial conditions.

The Commission found that the Agreement had been genuinely agreed to despite the minor technical errors in the Notice of Employee Representational Rights and the rates of pay table. Commissioner Thornton was satisfied that the employees were not disadvantaged by these errors and that the Agreement would have been agreed to regardless. The errors in the rates of pay table were corrected, and the employer provided written undertakings that these changes would not cause financial detriment to the employees. The Commission approved the corrections and considered the employer's undertakings as terms of the Agreement. Furthermore, the Commission accepted the employer's submissions regarding the patterns of work for shiftworkers, which would otherwise attract penalties under the Award but not under the Agreement. The Commission noted that it retained the discretion to reconsider the Agreement's compliance with the better off overall test if there were changes in the patterns of work in the future.

Based on the above findings, the Fair Work Commission approved the Topcoat Asphalt Enterprise Agreement 2024. The Agreement will operate in accordance with section 54 of the Fair Work Act 2009 from 4 March 2025. The nominal expiry date of the Agreement is set for 4 March 2028. This approval ensures that the Agreement is legally binding and enforceable between the employer and the employees covered by the Agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established