Adelaide Brighton Cement Limited T/A Penrice Quarry & Minerals

[2022] FWCA 3824

[2022] FWCA 3824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adelaide Brighton Cement Limited T/A Penrice Quarry & Minerals

(AG2022/4325)

Penrice Quarry & Mineral Operations Enterprise Agreement 2022

Quarrying industry
COMMISSIONER O'NEILL	MELBOURNE, 31 OCTOBER 2022

Application for approval of the Penrice Quarry & Mineral Operations Enterprise Agreement 2022

1. Penrice Quarry & Minerals has applied for approval of an enterprise agreement known as the Penrice Quarry & Mineral Operations Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The Agreement lodged contained an error whereby clause 5.4 referenced “triple time and a half” (300%)” as opposed to “triple time (300%)”. On 31 October 2022, the Employer filed an amended page of the Agreement. Pursuant to s.586 of the Act, I am satisfied that the correction should be made and that it is appropriate to do so.

1. 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.

1. 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.

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

·   Clause 7.1 – Annual Leave;

·   Clause 7.2 – Personal & Carer’s Leave;

·   Clause 7.3 – Public Holidays;

·   Clause 7.4 – Compassionate Leave; and

·   Clause 8.1 – Abandonment of Employment.

However, noting clause 1.4 of the Agreement and the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2022. The nominal expiry date of the Agreement is 30 October 2025.

COMMISSIONER

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Annexure A