Adbri Masonry Pty Ltd T/A 009 687 521

[2024] FWCA 3586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Adbri Masonry Pty Ltd T/A 009 687 521

(AG2024/3587)

ADBRI MASONRY SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2024

Cement and concrete products
COMMISSIONER PLATT	ADELAIDE, 15 OCTOBER 2024

Application for approval of the Adbri Masonry South Australia Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Adbri Masonry South Australia Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adbri Masonry Pty Ltd T/A 009 687 521 (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 7 October 2024.

On 9 October 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Applicant has submitted an undertaking in the required form dated 10 October 2024. The undertaking deals with the following topics:
· Despite Clause 1.2, the Agreement will commence 7 days after approval.
· In addition to Clause 4.6, a casual employee can request conversion to fulltime or part time employment after 6 months as provided for in s.66AAB of the Act.
· In addition to Clause 7.4, employee’s can access Compassionate Leave in circumstances of stillbirth or miscarriage as provided for by s.104 of the Act.

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 Australian Workers’ Union supported the undertaking.

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.

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) of the Act I note that the Agreement covers this organisation.

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.

The Agreement is approved 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 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between Adbri Masonry Pty Ltd, trading as 009 687 521, and the union representing the employees. The union sought approval for the proposed Adbri Masonry South Australia Enterprise Agreement 2024. The Fair Work Commission was tasked with assessing whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement was a "better off overall test" (BOOT) agreement. This required the Commission to consider whether the proposed terms and conditions of employment provided employees with a better overall package of pay and conditions than those they would have under the relevant industrial instrument. Additionally, the Commission had to determine if the agreement adhered to the requirements for good faith bargaining and whether it contained all the prescribed minimum terms and conditions as stipulated by the Act.

After examining the evidence and submissions from both parties, the Commission concluded that the agreement was a BOOT agreement. It found that the proposed terms and conditions offered employees a more advantageous overall package than what they would receive under the existing industrial instrument. The Commission was satisfied that the agreement was the product of good faith bargaining and contained all the required minimum terms and conditions. Consequently, the Commission approved the Adbri Masonry South Australia Enterprise Agreement 2024, affirming its compliance with the legislative requirements.

The Fair Work Commission ordered the approval of the Adbri Masonry South Australia Enterprise Agreement 2024, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman and would govern the employment conditions of the relevant employees from the specified commencement date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established