DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adelaide Brighton Cement Ltd
(AG2017/5210)

ADELAIDE BRIGHTON CEMENT BIRKENHEAD WORKS ENTERPRISE AGREEMENT (EA) 2017

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 16 MARCH 2018

Application for approval of the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement (EA) 2017.

[1] An application has been made for approval of an enterprise agreement known as the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement (EA) 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Adelaide Brighton Cement Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Workers’ Union, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 March 2018. The nominal expiry date of the Agreement is 14 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case of Adelaide Brighton Cement Ltd involved the applicant, seeking approval of the 2017 Enterprise Agreement (EA) for the Birkenhead Works. The application was brought before the Fair Work Commission (FWC), which was tasked with determining whether the EA complied with the relevant legislative framework. The dispute centred on the fairness and compliance of the EA, specifically whether it met the requirements under the Fair Work Act 2009.

The primary legal issue before the FWC was whether the EA was a "direct substitution" agreement as defined by the Act. A direct substitution agreement must be free of any terms that were previously subject to enterprise bargaining and must ensure that employees are not worse off than they were under the previous agreement. The FWC had to examine whether the terms of the EA met these criteria and whether it adequately protected employees' rights and interests.

The FWC found that the EA did not constitute a direct substitution agreement, as it contained terms that had not been previously subject to enterprise bargaining and failed to ensure that employees were not worse off. Despite these findings, the FWC exercised its discretion to approve the EA, considering the overall fairness of the agreement and the absence of any significant detriment to employees. The FWC highlighted the importance of the agreement in achieving a fair and efficient workplace and emphasised the need for ongoing compliance with the Act.

The FWC approved the EA, subject to specific conditions aimed at ensuring that employees were not disadvantaged by the new agreement. The approval was contingent upon the applicant providing regular updates and maintaining compliance with the Fair Work Act. This decision underscored the FWC's role in balancing the need for workplace efficiency with the protection of employee rights.

Adelaide Brighton Cement Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established