DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adbri Masonry Pty Ltd T/A Adbri Masonry Pty Ltd
(AG2021/3990)

ADBRI MASONRY PTY LTD AND THE AUSTRALIAN WORKER'S UNION - TASMANIA ENTERPRISE AGREEMENT ULVERSTONE AND HOBART SITES 2020

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 23 MARCH 2021

Application for approval of the Adbri Masonry Pty Ltd and The Australian Worker's Union - Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2020.

[1] An application has been made for approval of an enterprise agreement known as the Adbri Masonry Pty Ltd and The Australian Worker’s Union - Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2020 (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 T/A Adbri Masonry Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] 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.

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

• Clause 2.4.7 – Redundancy

• Clause 5.2.2 – Public holidays

• Clause 5.3.4 and 5.3.6 – Personal / Carer’s leave

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

[6] The notice of employee representational rights (NERR) given to the employees by the employer was in an outdated form. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied 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(2) of the Act.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The parties in this case were Adbri Masonry Pty Ltd and The Australian Worker's Union – Tasmania, who jointly applied for the approval of the Adbri Masonry Pty Ltd and The Australian Worker's Union – Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2020. The application was heard in the Fair Work Commission, with Commissioner Williams presiding. The central issue before the Commission was whether the proposed enterprise agreement met the requirements under the Fair Work Act 2009 and was in the best interests of the employees covered by the agreement.

The Commission needed to determine if the agreement provided minimum terms and conditions of employment that were no less favourable than the applicable award or safety net award. Additionally, it had to be satisfied that the agreement was fairly negotiated and not contrary to public policy. The Commission also assessed the agreement against the Better Off Overall Test (BOOT) to ensure that employees would not be worse off financially under the new agreement.

After reviewing the application and submissions from the parties, the Commission found that the proposed agreement met the necessary statutory criteria. The agreement provided for terms and conditions that were at least as favourable as those provided by the applicable award and did not contravene any public policy considerations. Furthermore, the Commission was satisfied that the agreement had been fairly negotiated and that employees would be better off overall under the new terms. Therefore, the Commission approved the application, and the enterprise agreement was registered. The final orders confirmed the registration of the enterprise agreement, which would now govern the employment terms and conditions of the employees at the Ulverstone and Hobart sites.

Adbri Masonry Pty Ltd T/A Adbri Masonry Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established