Adelaide Brighton Cement Limited

[2022] FWCA 3598

[2022] FWCA 3598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adelaide Brighton Cement Limited

(AG2022/4172)

Adelaide Brighton Cement Klein Point Mine Enterprise Agreement 2022

Cement and concrete products
COMMISSIONER PLATT	ADELAIDE, 17 OCTOBER 2022

Application for approval of the Adelaide Brighton Cement Klein Point Mine Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Adelaide Brighton Cement Klein Point Mine Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adelaide Brighton Cement Limited (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 11 October 2022.

1. On 14 October 2022, 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.

1. The Applicant has submitted an undertaking in the required form dated 14 October 2022. The undertaking deals with the following topics:

·   The definition of a shift worker, for the purposes of the National Employment Standards (NES), will be an employee that works on any afternoon or night shift, or Saturday or Sunday.

·   The Applicant has inserted a National Employment Standards (NES) precedence clause.

1. There are three National Employment Standards (NES) issues that require comment:

·   Clause 28 of the Agreement provides that if an employee takes annual leave in advance and is subsequently terminated before the right to annual leave has accrued, the company may make deductions from whatever renumeration is owed to the employee upon termination. Clause 12 of the Agreement states that if an employee fails to give notice, the company may withhold monies owing to the employee upon termination. It is noted that clauses 12 and 28 do not appear to limit the source of monies/renumeration which may be deducted. The effect of this is that these clauses appear to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination).

·   Clause 30 of the Agreement provides that employees are entitled to compassionate leave for the death or serious illness, within Australia, of a member of the employee’s immediate family. Clause 30 does not, however, appear to provide compassionate leave in relation to a member of the employee’s household, as provided in s.104(1)(a) of the Act. Furthermore, s.104 of the Act does not restrict the access of compassionate leave to only immediate family members in Australia.

·   Clause 13 of the Agreement appears to provide that an employee who has completed one year of continuous service will be entitled to 3 weeks’ severance payments. The NES provides 4 weeks redundancy pay for an employee with at least one year but less than two years’ service.

1. The Applicant has provided an effective NES precedence undertaking, in that it states that where the NES provides for a greater benefit than the Agreement, the NES will prevail. As a result of the NES precedence undertaking, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view in respect of the undertaking.

1. 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.

1. In addition to the NES issue, I also note that clauses 28 and 12 of the Agreement, which provide for deductions, will only operate to the extent that they are consistent with ss.324-226 of the Act.

1. 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.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act and despite clause 1 of the Agreement, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

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