Adelaide Brighton Cement Ltd

[2019] FWCA 975

[2019] FWCA 975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Adelaide Brighton Cement Ltd
(AG2018/4961)

ADELAIDE BRIGHTON CEMENT KLEIN POINT MINE ENTERPRISE AGREEMENT 2018

Mining industry
COMMISSIONER HAMPTON	ADELAIDE, 15 FEBRUARY 2019

Application for approval of the Adelaide Brighton Cement Klein Point Mine Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Adelaide Brighton Cement Klein Point Mine Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adelaide Brighton Cement Ltd. The Agreement is a single-enterprise agreement.

[2] On receipt of the application, the Commission raised a number of issues with the applicant employer and the bargaining representatives. These primarily involved seeking confirmation of the intended scope and operation of the Agreement in the context of the application of the Better Off Overall Test of s.193 of the Act. Adelaide Brighton Cement provided further clarification of the parties’ intentions in relation to some of its terms.

[3] On 7 February 2019, the matter was assigned to the Commission as presently constituted to deal with the application.

[4] Having regard to the material provided to the Commission with the application and in response to the initial request for further information, I was satisfied that all of the statutory requirements for the making of the enterprise agreement had been met. Without further discussing all of those requirements in this decision, I found that the process leading to the endorsement of the Agreement by a valid majority of employees who voted, was consistent with the requirements of the Act. This includes that the Notice of Employee Representational Rights was issued at the time that the employer initiated the bargaining; and that all relevant employees were given a genuine opportunity to vote on the Agreement having been provided with the requisite information, and advised of the required details. The Agreement was genuinely made.

[5] On 14 February 2019, I conducted a hearing of the parties to seek further clarification about certain provisions of the Agreement and the role to be played by the roster set out as an appendix to the Agreement. During that hearing, the employer and the bargaining representatives who participated confirmed, amongst other matters, that:

•  There are no casual employees engaged under the Agreement and none are intended. Any references remain from an earlier version of the instrument;

•  Overtime provisions for both full and part-time employees are intended to apply to hours beyond the scope of ordinary hours set out in the Agreement, with additional parameters for the part-time employees;

•  Time off in lieu provisions were intended to contemplate payment upon cessation of employment; and

•  The indicative roster is the actual roster that is to operate under the terms of the Agreement.

[6] I note that “ship loading” as undertaken in this particular workplace (the loading of conveyer belts within the mine precincts) appropriately falls under the scope of the operations of the mine. Further, to the extent that the approach to any of the leave provisions in the Agreement is unclear, clause 6 confirms that the NES provisions will override to the extent that they are more favourable to the employees.

[7] Where appropriate, these matters as they relate to ss.186 and 187 of the Act were reflected in formal undertakings provided to the Commission by the employer. The undertakings are appended to the Agreement. These undertakings are responsive to the concerns raised by the Commission and in particular, when considered in the context of the terms of the instrument itself, the undertakings confirm the intended operation of the Agreement. This has also led to my satisfaction that the Agreement meets the Better Off Overall Test and that the instrument will operate in conformity with the National Employment Standards.

[8] Further, in relation to the undertakings provided, the views of the bargaining representatives were sought in relation to those undertakings during the hearing of this matter. 1 The undertakings do not result in substantial changes to the Agreement and no employee will be disadvantaged or suffer financial detriment. As a result, I have accepted the undertakings pursuant to s.190 of the Act, and with the approval of the instrument, the undertakings are taken to be a term of the Agreement.

[9] The Agreement contains the relevant mandatory content, meets the form requirements of the Act; and I am satisfied that it does not contain unlawful, discriminatory or objectionable terms.

[10] Having regard to the terms of the Agreement, the additional information now provided to the Commission, and in light of the undertakings provided, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 February 2019. The nominal expiry date of the Agreement is 30 June 2021.

[12] I note that during the hearing, the employer confirmed that the salary adjustments nominated for 1 July 2018 will be applied from that date consequent upon the approval of the Agreement.

COMMISSIONER

 1   The bargaining representatives supported the undertakings.

Printed by authority of the Commonwealth Government Printer

<AE501815  PR704963>