Top Coat Asphalt Contractors Pty Ltd T/A Topcoat Asphalt
[2025] FWCA 739
•25 FEBRUARY 2025
| [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
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