Adbri Masonry Pty Ltd

[2023] FWCA 2245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adbri Masonry Pty Ltd

(AG2023/2218)

ADBRI MASONRY PTY LTD AND THE AUSTRALIAN WORKERS UNION – TASMANIA ENTERPRISE AGREEMENT ULVERSTON AND HOBART SITES 2023

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 20 JULY 2023

Application for approval of the Adbri Masonry Pty Ltd and The Australian Workers Union – Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2023

An application has been made for approval of an enterprise agreement known as the Adbri Masonry Pty Ltd and The Australian Workers Union – Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Adbri Masonry Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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. In accordance with s.201(2) I note that the Agreement covers the organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 7.2 – Public Holidays
· Clause 8.2 – Redundancy

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Adbri Masonry Pty Ltd recently appeared before the Fair Work Commission to seek approval of an enterprise agreement with The Australian Workers Union – Tasmania for employees at their Ulverstone and Hobart sites. The union and the employer had entered into negotiations for the purpose of formalising their working conditions, pay, and other employment terms, and had reached a mutual agreement that was to be presented to the Commission for formal endorsement.

The central legal issues before the Commission were whether the proposed agreement complied with the requirements set forth in the Fair Work Act 2009, and whether it met the criteria for being a "better off overall test" (BOOT). This test ensures that employees are not disadvantaged by the terms of the agreement compared to their previous conditions. Additionally, the Commission had to consider whether the agreement was made in good faith and whether the negotiation process was fair and appropriate.

The Commission found that the agreement adhered to the legislative framework and passed the BOOT test, providing clear benefits to the employees. The negotiation process was deemed to be conducted in good faith, with both parties engaging in meaningful dialogue to reach a consensus. The Commission was satisfied that all procedural fairness requirements were met, and there were no procedural or substantive defects in the agreement. Consequently, the Commission approved the enterprise agreement, recognising it as a fair and balanced arrangement that reflects the needs and interests of both the employer and the employees.

As a result of the Commission’s decision, the Adbri Masonry Pty Ltd and The Australian Workers Union – Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2023 has been formally endorsed and will now govern the employment conditions for the employees at the specified sites.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established