Adbri Concrete And Quarries NT Pty Ltd T/A Adbri Concrete And Quarries NT Pty Ltd

[2024] FWCA 3426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Adbri Concrete And Quarries NT Pty Ltd T/A Adbri Concrete And Quarries NT Pty Ltd

(AG2024/3300)

Cement and concrete products
COMMISSIONER THORNTON	ADELAIDE, 2 OCTOBER 2024

Application for approval of the Adbri Concrete and Quarries NT Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Adbri Concrete and Quarries NT Pty Ltd 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 Adbri Concrete And Quarries NT Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The copy of the Agreement filed with the application contained a signature page that did not meet the requirements under s.185 of the Act and Regulation 2.06A of the Fair Work Regulations 2009 (Cth). A copy of the Agreement with an amended signature page was later provided to the Commission that met the requirements of the Act and Regulations. I consider it appropriate in the circumstances to amend the Agreement pursuant to s.586 of the Act to allow for the amended signature page to be inserted.

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(1A)(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 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, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Clause 4.4(4) refers to criteria for an employee to request casual conversion and may be inconsistent with the National Employment Standards (NES). Additionally, the Agreement is silent on compassionate leave in cases of stillbirth and miscarriage, which is provided for under section 104 of the Act. Noting these inconsistencies, the undertakings provided and clause 1.4, of the Agreement that gives precedence to NES entitlements, I am satisfied that the more beneficial entitlements under the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act from 9 October 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

In the matter of Adbri Concrete and Quarries NT Pty Ltd trading as Adbri Concrete and Quarries NT Pty Ltd, the Fair Work Commission has approved an application for the Adbri Concrete and Quarries NT Pty Ltd Enterprise Agreement 2024. The Applicant sought approval of the agreement under section 185 of the Fair Work Act 2009. The primary dispute centred around compliance issues with the signature page and the Notice of Employee Representational Rights (NERR), as well as the consistency of the agreement with the National Employment Standards (NES).

The legal issues before the Commission included whether the signature page and NERR complied with statutory requirements, and if the Agreement met the criteria for genuine agreement under the Fair Work Act. The Commission also had to determine whether any inconsistencies between the Agreement and the NES could be resolved through the provided undertakings. Furthermore, the question arose as to whether the Agreement met the overall requirements for approval under the Act.

The Commission found that the signature page initially did not meet the requirements under section 185 and Regulation 2.06A. However, upon receiving an amended signature page, the Commission deemed it appropriate to amend the Agreement under section 586 of the Act. Regarding the NERR, although it was not in the prescribed form, the Commission was satisfied that the Agreement had been genuinely agreed upon and that the employees were not disadvantaged by the minor error. Consequently, the Commission exercised its discretion under section 188(5) to disregard the technical error. The Commission was also satisfied that the written undertakings provided by the Applicant would not cause financial detriment to employees or result in substantial changes to the Agreement.

The Commission concluded that the Agreement met all relevant requirements for approval under sections 186, 187, 188, and 190 of the Act. The undertakings were accepted as terms of the Agreement. The Commission further noted that any inconsistencies with the NES would be resolved in favour of the more beneficial entitlements under the NES. The Agreement was approved and will operate from 9 October 2024, with a nominal expiry date of 30 June 2027.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established