Adbri Masonry Pty Ltd Summary

[2021] FWCA 6404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adbri Masonry Pty Ltd
(AG2021/7861)

ADBRI MASONRY SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER PLATT	ADELAIDE, 25 OCTOBER 2021

Application for approval of the Adbri Masonry South Australia Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Adbri Masonry South Australia Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adbri Masonry Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 21 October 2021.

[3] On 22 October 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] There is one National Employment Standards (NES) issue that requires comment:

• Clause 1(d)(viii) of the Agreement provides a definition of “immediate family or household” which appears to be inconsistent with the definition section at s.12 of the Act, which does not include the “household” part of the definition.

[5] Clause 1(e)(ii) is an effective NES precedence clause, in that it states that in the event of an inconsistency between the NES and the Agreement, where the NES provides a greater benefit to employees the NES provision will apply to the extent of the inconsistency. As a result of the NES precedence clause, the definition of “immediate family or household” in clause 1(d)(viii) will not apply to the extent that it is inconsistent with the NES.

[6] The Applicant has submitted an undertaking in the required form dated 22 October 2021. The undertaking deals with the following topics:

• For casual employees, shift loadings and other penalty rates included in the Agreement will be paid in addition to the 25% casual loading referred to in clause 2(b)(v)(2).

[7] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative that responded supported the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] The Australian Workers’ Union (AWU), 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) of the Act I note that the Agreement covers this organisation.

[10] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, despite clause 1(b)(i) of the Act, and in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Adbri Masonry Pty Ltd has applied to the Fair Work Commission for the approval of the Adbri Masonry South Australia Enterprise Agreement 2021. The parties involved in the agreement are Adbri Masonry Pty Ltd, as the employer, and the relevant union, which represents the employees. The primary nature of the dispute is whether the agreement meets the requirements for approval under the Fair Work Act 2009. The Fair Work Commission is the court responsible for this decision.

The legal issues that the court was required to decide centred on whether the agreement provided for the mandatory minimum entitlements of employees as outlined in the Fair Work Act, whether the agreement contained terms that were contrary to public policy, and whether the agreement was genuinely negotiated. The court needed to ensure that the agreement complied with the provisions of the Act and that it was not prejudicial to the employees' rights.

The court found that the agreement met the requirements for approval. It was determined that the agreement provided for the mandatory minimum entitlements as stipulated by the Fair Work Act, and that there were no terms contrary to public policy. The court also found that the agreement was genuinely negotiated between the parties. Consequently, the court approved the Adbri Masonry South Australia Enterprise Agreement 2021. The final orders of the court were that the agreement be approved and registered under the Fair Work Act 2009.

Adbri Masonry Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established